FACULTY OF LAW

ALIGARH MUSLIM UNIVERSITY

ALIGARH
2019-2020

NAME:-​ KHADEEJA ZAIDI

CLASS:-​ BA LLB(HONS.) ​ ​(VIth SEMESTER)

ROLL NUMBER:- ​17 BA LLB 70

ENROLLMENT NUMBER:- ​GI9844

TOPIC:- ​EXAMINATION OF WITNESS (S. 137-143)

SUBJECT:- ​LAW OF EVIDENCE-II

ASSIGNMENT:- ​PROJECT

SUBMITTED TO:- ​PROF. MOHAMMAD ASHRAF

 SYNOPSIS

This assignment shall deal with following aspects keeping in mind the main
topic:-

● Starting with the ​acknowledgement

● Then the ​introduction​ of the topic
● Examination of Witness under ​Crpc
● Examination of Witness under ​CPC
● Examination in Chief (S.137)
● Examination in Chief Questions
● Cross Examination (S.138)
● Re Examination
● Difference between examination in chief, cross examination, re
examination
● Section 139
● Section 140
● Section 141
● Section 142
● Section143
● Followed by the​ conclusion
● Bibliography
 ACKNOWLEDGEMENT

I would like to thank Almighty for giving me enough strength to complete this
assignment.
Secondly, I would like to thank ​PROF. MOHAMMAD ASHRAF​ ​for his
efforts despite this pandemic.
Last but not least, I would also like to appreciate the support from my brother
SAFWAN AHMAD ZAIDI ​for helping me with gathering information. And
also my ​MAA​ ​for taking care of other stuff so I can complete my assignment.

KHADEEJA ZAIDI
 INTRODUCTION

Examination of witnesses is an important principle in which witnesses take a stand of his or

her words. For the protection of the integrity of the evidence. It is a very important part of a
criminal and civil trial. It is not only important for law students, it is also important for
practising lawyers to know the art and law related to examination of witnesses.

Examination of witnesses under CRPC:

Section 135 of Indian Evidence Act deals with the examination of witnesses present. In the
Code of Criminal Procedure Section 311 empowers the court to summon a material witness,
or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other
proceedings” under Crpc, or to summon any person as a witness, or to recall and re-examine
any person who has already been examined if his evidence appears to it. Examination of
witnesses is there in the Code of Criminal Procedure in all the trials either session trial,
warrant trial,or summary trial. Examination of witnesses in CrPC are as follows:

● Session trial on prosecution and defence examination (Section 225-237)

● Warrant trial on the police report (Section 238-243)
● Warrant trial on the complaint (Section 244-250)
● Criminal trial on summon cases (Section 251-259)
● Summary trial (Section 260-265)

Examination of witnesses under CPC:

Examination of witnesses is there in order XVIII of rule 4 to 16 in the Code of Civil

Procedure.
Examination in Chief:

Examination in chief is defined under Section 137 of the Indian Evidence Act, when the party
calls a witness in the examination of witnesses that is called examination in chief.
Examination in chief is the first examination of witnesses after the oath. It is the state in
which a party called a witness for examining him in chief for the purpose of eliciting from the
witness all the material facts within his knowledge which tend to prove the party’s case. It is
also known as Direct Examination.

The objective of Examination in Chief:

● It overcomes the burden of proof legally sufficient.

● Remember and understand.
● Persuasive.
● Hold the cross-examination.
● Contradictory and anticipatory and of evidence that the opposition will present.

There is more objective of examination in chief are as follows:

Major objectives

● All the evidence must be admissible.

● The witness needs to present as intended and capable of being believed.
● Each and everything related to the fact of evidence of the offence must be proven
beyond a reasonable doubt through the witnesses oral evidence and exhibits.

Minor objectives
You also achieve some additional objectives which are less essential but still important:

● Present a complete and logical, rational theory of the offence.

● Witnesses present in the best possible light.
● Mention all the facts in the evidence and attempt to explain the relation between
propositions that cannot both be true at the same time.
● Limiting the exposure of witnesses through the shut down of potential
cross-examination.

Examination in chief questions:

There would be general questions asked in the examination in chief which is related to the
facts of the evidence no leading questions are asked in the examination in chief. Leading
questions are asked only in cross examination and re examination, first of all, prosecutors ask
the question in the examination in chief in the criminal trial.

Cross Examination:

After finishing the examination in chief, cross-examination will start. In the

cross-examination the defendant lawyer asks the cross-question which was asked by the
prosecutor. Defendant lawyers may ask the questions which are related to the facts and the
defendant can also ask the leading question in the cross-examination which were not allowed
in the examination in chief. Cross examination is very important in the examination of
witnesses, due to the cross-examination many facts get clear because in the
cross-examination the defendant analyses all the statements of the witnesses then asks cross
questions related to the statement which was given by the witnesses in the examination in
chief. The Defendant can also ask the question which was not related to the examination in
chief but related to the facts of evidence.

Cross Examination in civil cases in India:

All the witnesses in civil cases which are produced or examined by the court on the wish of
parties must be presented before the court within 15 days from the date on which issues are
framed or within such other period as the court may fix. Then parties have to file a list of
witnesses in the suit. After that court can ask the witnesses for examination by sending
summons or parties may call the witnesses by themselves. If the court issued a summons for
asking the witnesses for the examination then the expenses which arise due to the calling of
witnesses by issuing summons has to be deposited by the parties. The money deposited by the
parties in this condition is known as “Diet Money”. The date on which the parties wish to
produce and examine the witnesses in the court that is hearing. Now the hearing will decide
the court on the date of hearing. First thing is done by the plaintiff”s examination in chief in
which he asked the question which was seen by the witness. After that the defendant asked
cross-questions which were asked by the plaintiff in the examination in chief. And after the
cross-examination is over at this stage the court will fix a date for final hearing.

Cross Examination in criminal cases in India:

There are different stages of cross-examination in criminal cases in the criminal trial in a
warrant case instituted on the police report After the charges are framed, and the accused
pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of
the accused. The prosecution is required to support their evidence with statements from its
witnesses. This process is called “examination in chief”. The magistrate has the power to
issue summons to any person as a witness or orders him to produce any document. After the
examination in chief, the adverse party asked the cross-questions to witnesses that is called
cross examination.
Re examination:

The party who attends the witness for the cross-examination shall be called re-examination. If
the party is not subject to cross-examination as per the court order then it is not safe to trust
on examination in chief.

Difference between examination in chief, cross examination, re

examination:

Examination in chief Cross Examination Re Examination

Examination-in-chief is an
examination of a witness
which is done by the party
who filed the suit or case in
the court.
Cross-examination is an
examination of a witness
which is done by the adverse
party after the
examination-in-chief.
Re-examination is an
examination of a witness
which is done by the parties
to remove incompatibility
which arises during the
examination-in-chief and
cross-examination.

It is the first order. It is the second order. It is the last order.

The purpose of the The purpose of The purpose of

examination-in-chief is to
make a statement under oath
of a witness in the court.
cross-examinations is to test
the truth of witness by
challenging the honesty of
his respect.
re-examination is the
examination of a witness
which is done by the parties
to remove incompatibility
which arises during the
examination-in-chief and
cross-examination.

No leading questions may be Freely asked leading No leading questions may be

asked without permission of questions in the asked in the examination
the court in cross-examination. and can not introduce new
examination-in-chief. matters without permission
of the court.

It is a part and package of a It is essential to pull out the It is not necessary in the
judicial proceeding. truth and also an essential examination of witnesses
part of a judicial proceeding. and it is not an essential part
of a judicial proceeding.
Section 138 of the Indian Evidence Act:

It provides for the order of examination; a witness will be first examined in chief, and then if
the adverse party deems fit, cross-examined and if the party calling him so desires, be
re-examined. A witness has to be first examined in chief to be cross-examined, else, it is not
permissible and not possible ​(Sharadamma v Renchamma).1 An order of re-examination
can be made by the court on an application by the party as it is not limited to courts’ own
motion ​(SSS Durai Pandian v SA Samuthira Pandian)2. The matter of re-exam should be
limited to examination in chief and cross-examination and if any new matter is introduced by
permission of the court, the witness can be subjected to cross-examination, again, upon that
matter.

Cross examination : A wide scope-

Section 138 of the Indian Evidence Act provides a wide scope for cross examination. What is
spoken to in examination in chief is not to be controlled. Section 138 of the Act clearly
provides that examination in chief and cross examination must relate to relevant facts in the
opening part of the second half of the Section. But the facts to which the witness had stated
in his examination in chief need not be controlled in cross examination. Therefore, the
question must be relevant to the fact in cross examination which was necessary to be
proved by that witness. If there is any difference in respect of the relevancy of the facts was
acceptable only to the dependability, character and such other things concerning the
witness.

Section 139 of the Indian Evidence Act:

Cross examination of person called to produce documents

“A person summoned to produce a document does not become a witness by the mere fact that
he produces it, and cannot be cross examined unless and until he is called as a witness.”

If a person has the document in his possession then the person is summoned only to produce
a document, he may appear in Court and produce the documents. He may inform the Court by
an application stating that he has no possession of the document if the document summoned
is not in his possession. Summon has been issued to a person even if a person produces the
document to that summon. Section 139 of Indian Evidence Act clearly provides that he does
not become a witness by the simple fact that he produces it and he cannot be cross examined
unless he is called as a witness. If the person has not produced the documents then the Court

1
AIR 2007 Kant. 17
2
AIR 1998 Mad. 323
cannot record the statement of such person on oath to satisfy itself regarding the whereabouts
of the document.

Section 140 of Indian Evidence Act:

Witnesses to character may be cross examined and re examined.

Scope-

The character of a party to a civil suit cannot be relevant to decide an issue in that suit under
Section 52 of Indian Evidence Act. The good character of the accused is relevant in criminal
cases under Section 53 of Evidence Act. Under Section 54 in criminal cases the bad character
of the accused is irrelevant but when the evidence of his good character is given, the evidence
of bad character becomes relevant. Under Section 55 of the Evidence Act where the character
of a person is such as to affect the amount of damages which he should receive it is relevant.
The person who gives the testimony regarding the character of a person may be
cross-examined and re-examined, the act of causing something to move up and down with
quick movements. The character evidence helps the Court to estimate the value of evidence
given against the accused in criminal cases.

In ​Haagen Swendress Holt C.J ​stated that a man is not born a jack, there must be time to
make him so, nor is he shortly discovered after he becomes one. A man may be regarded as
an able man this year, and yet be a beggar the next, it is unfortunate that this happens to many
men and this recent reputation will signify nothing to him upon this event.

Section 141 of Indian Evidence Act:

Scope-

Section 141 of Indian Evidence Act defines “leading question”. Section 142 of Evidence Act
lays down that leading questions must not be put in examination-in -chief and re-examination
without the permission of the Court. It also lays down that the court should permit leading
questions in examination in chief or re examination only as to the matters which begin, which
are unchallenged or which have already been sufficiently proved in the opinion of the Court.
Leading questions may be put in cross examination under Section 143 of Indian Evidence
Act.

Leading questions -
A question is leading one when it points to witness the real or obligated fact which the
examiner expects and desires to be confirmed by the answer. The circumstances in which the
question arises determined whether a question is leading or not.

Generally, the answers of leading questions are given by yes or no. But it cannot be said that
in order to stamp a question leading the answer to it must be as yes or no.

A leading question is that which signals to the witnesses the real or obligated fact which the
prosecutor expects and desires to have confirmed by the answers leading to questions.

Section 142 of Indian Evidence Act:

If objected by the opposite party leading questions must not be asked in examination in chief,
or in a re examination without the permission of the Court.

The Court shall permit leading questions as to matters which are begin or unchallenged or
which have in its opinion been already sufficiently proved.

Scope

Section 142 of Indian Evidence Act stated that leading questions should not be asked in
examination in chief or re examination if they are objected to.

The Court may give the permission of leading questions to pull the attention of the witness
which cannot otherwise be called to matter under inquiry, trial and investigation. The witness
must report for what he himself had seen.

Exceptions to this rule

Section 142 of Indian Evidence Act provides exceptions to the general rule stated above. By
the order of the Court, the examiner may put leading questions in examination chief or re
examination.

● As to matters which begin.

● Which are unchallenged.
● Matters in which the opinion of the Court have already been proved.

The Court can allow a party examining his own witness to put leading questions by way of
cross examination. These are exceptions under Section 154 of Indian Evidence Act.

If objected to
It should be kept in mind that if the adverse party makes any objection, leading questions
may not be put in examination in chief or re examination but such questions may be put in
examination in chief or re examination if the Court overruled objection.

Permission of the Court

There is no legal hurdle in putting leading questions during the examination in chief, if their
opposite side does not object without permission of the Court. Need to receive permission of
the Court to put leading questions should arise only in the eventuality where the opposite side
takes objection. Even if the opposite side objects, the Court has a broad prudence in allowing
leading questions to be put. The second para of Section 142 of Indian Evidence Act shows
that the Court has no prudence to not allow a leading question if it relates to unchallenged
matters or introductory matter or matters already proved. The prudence to allow or not allow
a leading question can be exercised by the Court only when such leading question relates to
matters other than those recited above.

Section 143 of Indian Evidence Act:

When they may be asked Leading questions may be asked in cross examination.

No misleading question in cross examination

A counsel cannot ask a question in cross examination forward that some facts have been
proved or admitted. Imagine a witness appears for the plaintiff, the defendant tries to show
that the witness is a driver of the plaintiff so he is a curious witness. The proper question to
be asked by the defendant in cross examination would be “Are you a driver of the plaintiff?”
A question “How long have you been in the service of the plaintiff?” is not proper as it takes
for granted that the fact the witness is a driver of the plaintiff has either been proved or it has
been admitted by the witness.
 CONCLUSION

Examination of witnesses is very important for any case whether it belongs to the civil or
criminal nature and both the procedural law explains the examination of witnesses. Section
137 to 143 of Indian Evidence Act explain the examination of witnesses in which act cover
all the things, like who can first examine the witnesses during the examination of witnesses
and what are the relevant facts that are accepted during the examination of witnesses and
what are the questions asked by an advocate during the cross-examination of witnesses and
what questions are not asked during the cross-examination and also tells the power of judges
during the examination of witnesses and at last give the provision related to the power of the
jury and assessors to asked the question during the examination of witnesses.

BIBLIOGRAPHY

● Dr Avtar Singh, Central Law Publications, Principles of the law of evidence

● SCC online
● The Indian Evidence Act, 1872
● Manupatra
● Legalbites.in
● Blog.ipleaders.in
● Kanwarn.wordpress.com
● Srdlawnotes.com