Examination of Witnesses

Introduction

The witnesses when called to prove the facts of the case produce an affidavit to prove his facts or record his statement in the presence of the judge. This record of the statement is called as Examination in Chief. After Examination in Chief, the Cross-Examination takes place. The examination of the witness by asking questions related to the case by an opposite party counsel is called Cross-examination. The examination of a witness subsequent to Cross-examination is called Re-examination.

The law of evidence is a system of rules for ascertaining controverter questions of fact. The principal of the Indian Evidence Act, 1872 is to indicate that what is evidence, what are types of the evidence, what are the facts on which evidence are to be led and what are the facts on which evidence need not be led, who has the burden to lead the evidence. These types of questions are answered under the Indian Evidence Act. 1872.

Section 138 of the Indian Evidence Act, 1872 provide that the witnesses must be examined in the following orders:

• Examination-in-Chief: It is the examination of a witness by the party who calls him and the first examination after the witness has been sworn. It is the prerogative of the party by who the witness has been called to examine him in chief so as to get all the material facts within his knowledge to prove such a party’s case. No leading questions should be asked here. It is preferable that the questions move in chronological order so that the information presented can be linked to the case better. Only relevant questions can be asked.
• Cross-Examination: The examination of a witness by the adverse party shall be called his cross-examination. It is a powerful tool to test the veracity of a witness and the accuracy or completeness of what he has stated. The cross-examination is also called examination ex-adverso.
• Re-Examination: The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his re-examination. If the counsel thinks it is necessary, with the permission of the court, he may re-examine his own witness. Re-examination cannot be called as a matter of right.

Types of Evidence

Types of legal evidence include testimony, documentary evidence, and physical evidence.

Testimony: The testimony of a witness is not legal evidence unless it is subjected to cross-examination. Testimony is a form of evidence, which was obtained from a witness. A witness makes a statement under declaration of fact is a testimony witness.  Testimony may be oral or written and testimony evidence is usually made by oath or affirmation under penalty of perjury.

Documentary Evidence: Documentary evidence is a type of written proof rather than oral. Any written document which is presented and allowed by the court as evidence in a trial or hearing and offered at a trial to establish the existence or nonexistence of a fact that is in dispute. For example, Letters, contracts, deeds, licenses, certificates, tickets, or other writings are documentary evidence.

Physical Evidence: Physical evidence is usually found at the scene of a crime and it may consist of all sorts of prints such as fingerprints, footprints, handprints, cut marks, tool marks, etc. For example, a person who was present at the time of the crime or a method or technique used to break into a building or harm a victim.

Evidence in Criminal cases: Section 311 of the Code of Criminal Procedure, 1973, empowers the court to summon the witness, or to examine a person present at “any stage” of “any inquiry”, or “trial”, or “any other proceedings” under CrPC and summon to any person as a witness, or to recall and re-examine a witness who has already been examined.

The examination of witnesses in criminal cases is present in all the trials of the Code of Criminal Procedure. In the warrant trial when police make the report, an examination of witnesses is performed by the prosecution after the charges are framed and accused pleads guilty. Then the court gives the chance to prosecution to prove the guilt of the accused. Here prosecution needs evidence with statements from its witnesses. This is an examination in chief. After recording the examination in chief, the opposite counsel/ defence counsel asks the questions from the prosecution witness that is called cross-examination. After the cross-examination if the prosecution has some queries then he asks the questions from the witness that is called re-examination.

Evidence in Civil cases: Most of the time in civil cases evidence is presented in written form for cross-examination of the witness. Written statements are recorded as evidence-in-chief. It follows that when the outcome of the case depends on a judge’s view of the evidence, cross-examination is the key to success. During cross-examination, the defendant can ask the question which is not related to the examination in chief but is related to the facts of evidence.

-Niyti Jangra
Associate at Law Offices of Kr. Vivek Tanwar, Advocatete & Associates