The role that is played by witnesses in providing assistance to court for sake
of dispensation of justice is irrefutable. Evidence is the key thing in any kind
of case but it is the witness that sheds light upon the intricacies underlined
in that case. A structure and procedure in this direction has been laid down via
various statutory provisions and Sections 135 to 166 of Evidence Act cover the
examination of witnesses aspect.
What actually construes to as 'Witness' needs to be understood first. When it is
talked about 2 components of 'Evidence' in Section 31, it is 'witness' who forms
first component and documentary evidence as the other. It also covers define of
oral evidence and in simpler terms imply all statements that are permitted by
court or required to be made before it by the witnesses with regards to those
facts which are under enquiry. This kind of evidence must be direct.2
Order as to production
The dealing with production order and witness examining is envisaged u/S 35 of
Indian Evidence Act. CPC's Order 18 and CrPC's Chapter 18, 19, 21 and 24
addresses the procedure of witness examination. The basic thing is who gets to
examine its witness first and in what order this shall proceed. It is the side
of prosecution in criminal cases that leads evidence.
Wide powers have been
conferred upon courts via S. 311 of CrPC for summoning or examining a witness
that it deems material or any other person present and also grants authority to
recall or re-examine person already examined. Any deviation from order
pertaining to taking of evidence is capable of rendering serious prejudice to
any party or causing miscarriage of justice 3.
Order as to witness examination
This is based on procedure of English Common law and is inclusive of 3 stages.
First is examination in chief, then cross-examination and then the
re-examination4. S. 137 deals with definition of all three examinations and this
order is defined u/S 138 of Evidence Act. The examination in chief must address
the relevant facts but on contrary, the cross-examination need not be limited to
facts that have been testified by the witness. Re-examination aspect comes post
cross-examination and make picture more clear as to the witnesses' testimony.
The questions being asked in the cross must be on basis of reasonable grounds
essentially5. Usage of questions in nature of indecent or scandalous are
forbidden by court 6.
Scandalous are the ones which are either irrelevant from
aspect of facts in issue or that tends to insult to cause annoyance to being
- Types of Witness Examination with relevant pros and cons:
- Examination in Chief
When a party examines a witness who is called by him, it is called examination
in chief8. This is the 1st thing of the whole examination process once oath is
affirmed. The entire emphasis in this relies on witnesses and evidence. Taking
discourse to the material facts, parties tend to establish as to what is their
A sophisticated chief examination is capable of establishing plenty of
objects. Questions amounting to leading ones are not asked in this kind of
examination. The competency of witness is one essential which is to be kept in
mind and his testimony must reflect relevancy.
There must be adherence to rule
named as golden rule9 while preparing for this examination and it says that
there must be clarity, outline questions shall be prepared, proper phrases shall
be utilized, relevant portions have to be given primacy and flexible questions
shall be taken discourse to.
- Cross Examination
This examination plays an instrumental role whilst examination of witnesses and
considered as one of most crucial method in determining and obtaining of
truth10. It is preceded at instance of the adverse party11 and attempt is made
to check veracity as well as the credibility when it comes to a witness's
statements and his testimony and this checking is the primary aim of this
examination. Questions beyond to the facts can also be inquired about during
course of this examination12 but misleading ones are not permitted to be
This right of a party to cross-examine a particular witness is not just merely
an ordinary right but is found recognition in principles of natural justice too.
Since, perjury itself is a crime in court of law, this requisite of
cross-examination plays a significant role in truth discovery14. If adverse
party does not indulge in this process of cross-examining the witness, this
leads to an inference being drawn that the adverse party has accepted the truth
of the made statements and leaves no room for any subsequent grievance being
raised if this is not conducted 15. However, if adverse party is willing to
cross-examine but for reasons best known to court is not allowed to do so, the
said evidence is rendered to be not taken consideration at all 16.
When any matter gets arose during the course of cross-examination, this kind of
examination provides stage for explaining those matters and is usually confined
to such matters only. Attempt is made to clarify expression(s) used by witness
during that course. Additionally, new matters could also be brought up but with
due permit taken from court and then again the adverse party gets conferred with
liberty to cross-examine those points17.
So, in simpler terms, objective of chief examination is witness examination
under the oath, of cross is to reveal truth and that of re-examination is
removing of vagueness. Insofar as leading questions are concerned, they are not
to be asked in chief and re-examination unless court permits them18 to be asked
but are capable of being asked during course of cross-examination 19.
- Other pertaining aspects
- Impeaching witness's credibility or cross-examining on previous
S. 138, 140, 145, 148, 154 and 155 of Evidence Act envisages concept of
impeaching witness's credit by way of cross-examination. The witness may be
cross-examined on statements made previously by him, in absence of written
document if the same is relevant to the matter in issue20.
When there arise
contradiction as to the previous statements that were made, it does not mean
that the same becomes a substantive evidence but could only raise question marks
on the veracity of the same witness21. How the impeaching of credit is done is
found u/S 155 saying that it an be done by way of testifying regarding unworthy
credit of him, through a particular proof showing him been bribed, any part of
former statements inconsistent with some evidence or other, proof as to
immorality of witness's character. S. 157 connotes that previously made
statements could be utilized to corroborate the later testimony pertaining to
same fact but the requirement is that the former ones should have been made
before any authority 22.
- Do witnesses are required to give photogenic memories of incidents?
S. 159 lays down 3 elements whilst witness is examined and asked to tell about a
fact. First is that he has to examine the in question fact, then recollect it
and then third to communicate the recollection in front of the court and not
expected to give photogenic memories.
- Victim or witness's testimony when he/she is child
It can be recorded via video link or close circuit tv and if not possible, in
such manner that body or face of accused is not visible to minimize the trauma
as per Apex Court23. This has been materialised in acts like POCSO act where S.
33(6) says aggressive questioning or character assasination of child is not
permitted, S. 36 talking about accused to be not visible to child etc. and
proceedings to take place in camera. Competency of child has to be evaluated and
accordingly only order has to be recorded by court.
- Examination of alleged victim in S. 376 and similar sections of IPC related
This also has to be in camera proceeding. S. 146 of Evidence Act was amended
post Nirbhaya case to add that in sexual assault related offences, when the
issue is related to consent, questions in cross-examination cannot be put forth
as to immoral character or previous sexual experience etc. to the alleged victim
- The issue of witness turning hostile in criminal cases 24
This is one of the most crucial challenge that is faced by justice system and
leads to hampering of evidence and eventually to accused's acquittal. He becomes
biased against the party who is examining him and becomes unwilling to tell
truth25 giving fount to conflict of opinions 26.
The reasons behind can be either
money power or intimidation or muscle power etc. So, safeguarding witness's
rights and his interests, step was taken in form of Witness Protection Scheme,
2018. Protecting him from any threat or criminal recrimination and enabling a
fair trial were its basic motto and a right step in direction of making the
justice system more structured, systematic and efficient.
A SC case 27 has ruled
that witness's right to testify without any fear in court is part of right
guaranteed u/A 21 of Constitution. The scheme puts witnesses into 3 classes
namely the ones whose families are under threat, B: related to safety and
reputation of witness itself, C: ones being threatened by either resorting to
intimidation or harassment.
- Comparative Study 28
- Insofar as right to open justice and cross-examining the prosecution witnesses
is concerned, it is not of absolute nature. Court enjoys authority to order
video-screened evidence and also witness anonymity as part of their inherent
powers. Like in a case 29, where witnesses names were ordered to be not withheld.
The reasons however, for the same have to be provided which could like public
interest, statutory requirement etc.
Similar is the case in Australia. SC of Victoria30 held that witnesses' name
could be withheld from the defendant and they shall be allowed to give evidence
whilst not disclosing their identity. Various Witness Protection Acts are also
in place like Witness Protection Act 2000(Tas) etc. Reasonable likelihood of
danger to witness is the ground for granting anonymity to witness there.
- New Zealand
Earlier there was position that anonymity orders cannot be passed but later via
several amendment this position got reversed and such orders can be passed for
those whose life is 'likely' to be endangered. Since, right to cross examination
exist as an essential right there too, there are evident cases where witnesses
depose from some different place via video link and his voice is not distorted
for Judge and Jury but for all others inclusive of accused and his lawyer. This
procedure has been held to be 'fair' from respect of their New Zealand Bill of
6th Amendment of their Constitution directs that accused in all cases shall
enjoy right to be confronted with witnesses against him. So, defendant's right
to cross examine reflects from constitutional right of confrontation itself. The
practice there is foremost, name and address of witness is asked during
examination. A special case has to be made out by the prosecution in this regard
in order to prevent the said revelation.
In case victim is child, SC31 held that
certain things need to be kept in mind like whether he would be traumatized by
being in court or by defendant's presence or where does his welfare lies while
considering procedural use is necessary not. The Marlyand Statute of theirs
requires use of special procedure in special cases only. The witnesses are
protected by several witness protection programmers and in consonance with that
courts sometimes permit non-disclosure of certain personal things if evidence
that's available suffices for effective cross-examination.
Delving into various kinds of witness examination, it has been established that
chief examination plays a good role in using material facts to establish the
side of a party in a case and if done sophistic-ally, it is capable of achieving
plenty of objects. Then how cross-examination leads to unfolding of truth and
that it has an instrumental role in checking the veracity and credibility of the
That it is not just right of accused party to cross-examine but also
the natural justice principle and a SC ruling was discussed where it was held
that if accused is not allowed to cross-examine, the said evidence cannot be
taken into consideration at all. Then how re-examination can be used to bring
more clarity as to matters that arose during course of cross-examination and
address vagueness created through it. It was observed that witness cannot be
expected to put-forth photogenic memories in his testimony.
The issue of
witnesses turning hostile was also addressed and how Witness Protection Scheme,
2018 is a step in right direction but awareness regarding same has to be
enhanced amongst common masses. Given the depth of this issue, Indian justice
system has still a long way to go. Certain provisions as to impeaching the
credits of witness were also discussed in brief.
In the end, a comparative study
was made with other State's position and system regarding matter at hand like in
USA, UK, NZ etc. The issue regarding anonymity of witness once certain
conditions are satisfied in eyes of law should be taken into consideration in
India too in case of exceptional circumstances as applicable in other countries
- The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).
- Id, § 60.
- Prithivi Nath v. RC Kaul, 1975 Cr LJ 216.
- Banwari Lal v. State, AIR 1956 All 385.
- Supra note 1, § 149.
- Supra note 1, § 151.
- Supra note 1, § 152.
- Supra note 1, § 137.
- David Paul Brown, Golden Rues For The Examination Of Witnesses 478 (3rd ed.
- RC Khera, 30 Years Digest On Evidence 863(3rd ed. 2003).
- Supra note 1, § 137.
- Supra note 1, § 146.
- Tulsi Ram v. State of Mahrashtra, 1984 Cr LJ 209.
- Bhojraj v. Sitaram, AIR 1936 PC 60.
- Shyam Singh v. DIG of Police, AIR 1965 Raj 140.
- Neminath v. Jambu Rao, AIR 199 Mys. 154.
- Batuk Lal, Law Of Evidence In India 1134 (4th ed. 1997).
- Supra note 1, § 142.
- Supra note 1, § 143.
- Tahsildar Singh v. State of UP, AIR 1956 SC 1012.
- Bharat Singh v. Bhagirathi, AIR 1966 SC 405.
- Dwarka Nath v. Lalchand, AIR 1965 SC 1549.
- Sakshi v. UOI, 2004 CR LJ 2881 (SC).
- GS Bajpai, Witness in the Criminal Justice Processs, A study of Hostility and
Problems Associated with witness, Centre For Civil And Criminal Justice
- RC Khera, Supreme Court Criminal Digest 1596(Sandeep Bhalia, 1st ed. 2001).
- Satpal v. Delhi Admin., AIR 1976 SC 294.
- Mahendra Chawla v. UOI, AIR 2018 SC 2679
- Law Commission Of India's Consultation Paper On Witness Identity
Protection And Witness Protection Programmes August 2004,
visited Dec. 1, 2021).
- R v. Socialist Worker Printers etc. ex parte Attorney Gen, 1975 QB
- Jarview v. Magistrate Court of Victoria at Brunswick and Ors.(1995) 1 VR
- Maryland v. Craig, 497 U.S. 836 (1990) (USA).