ASSIGNMENT

Topic: - Examination of Witness:

Submitted By

MOHAMMAD ZIYA ANSARI

BALLB (HONS)
SEMESTER-VI
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB- 72
PROJECT

Submitted To

PROF. MOHAMMAD ASHRAF SIR

Professor, Faculty of Law

Aligarh Muslim University

ALIGARH-202002 (INDIA)

2019.20
 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE PROFESSOR

MOHAMMAD ASHRAF SIR FOR GUIDING ME IMMENSELY

THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION &

SUPPORT. I MUST THANKS TO MY CLASSMATES FOR THEIR
TIMELY HELP & SUPPORT FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL

THOSE WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS
THE COMPLETION OF THIS PROJECT.

THANKING YOU

MOHAMMAD ZIYA ANSARI

BALLB-3rd Year GI-6492

17BALLB-72
 SYNOPSIS

1-INTRUDUCTION.

2- ADMISSIBILITY OF EVIDENCE.

3- EXAMINATION ORDER.

(A)- Order of Production and Examination of Witness (Section 135).

(B)- Judge to decide as to admissibility of evidence (Section 136).

©- Stages of Examination of Witness.

(a)-Examination-in-chief,
(b-)Cross-Examination and
©-Re-examination.

(D)- Section- 138.

(E)-Examination of Non-Witness.

(F)- Leading Questions (Section 141 to Section 143)

4-CONCLUSION.

5-BIBLIOGRAPHY.
1-INTRODUCTION:

A witness is the person who is called to testify before the court of law the facts that are relevant
to the fact in issue. Testimony of a witness is the major means which magistrate or judges arrive
at the truth or the substantive truth and so resolves the issues in any given case. The judge or
magistrate’s work is to listen carefully to and record the evidence of the witness and in the end
decides to which of the witnesses should believe and to which he should disbelieve or disregard
altogether1.
Witness plays a very important role in the administration of criminal and civil justice. The term
witness here must be taken to include parties to the proceedings; judgments are normally made
on the basis of evidence given by witness.
Chapter X of part III of the Indian Evidence Act, 1872 deals with the examination of a witness.
The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one
of the most reliable evidence because the person giving the statements has personally witnessed
the event happen. Section 135–165 of the Evidence Act, 1872 deals with examination and cross-
examination of witnesses.

2-ADMISIBILITY OF EVIDENCE:

As per Section-5 of the Indian Evidence Act, 1872, only those pieces of evidence, regarding the
facts and facts in issue have to be submitted that are relevant. Section 136 has reiterated this
point. It states that a judge may ask the party, who has proposed to give evidence, as to how will
such a fact, for which the evidence has been provided, be relevant to the case. Hence, the judge
can question the relevancy of the fact for which the evidence is being provided and the evidence
shall only be submitted if the judge thinks the fact will be relevant to the suit.

If the fact (A) proposed to be proved, whose evidence will be admissible on proof of some other
fact (B), the latter (B) should be proven first. The court, may, however, exercise its discretion
and let the party prove the former (A) first, on the condition that the party will prove the latter
fact (B) at a later stage.

Where relevancy of an alleged fact is dependent on another alleged fact, the latter shall be
proven first but again, the judge may exercise his discretion and let the party prove the first fact.
It has been held in Collector of Gorakhpur v Palakdhari Singh (1889 ILR 12 All 1) that any
doubt about the admissibility of a piece of evidence shall be in favour of admissibility.
Under the Evidence Act, 1872 Section 5 states that evidence is admissible only when it supports
a relevant fact in issue. It is further provided in Section 136 that the judge may ask the parties if
the evidence they have adduced deals with a relevant fact or not.

1
1-Morris, H.F, Evidence in east Africa
For evidence to be admissible in Court, the judge must be convinced that the evidence is relevant
and does help establish a relevant fact in issue.

3-EXAMINATION ORDER:

Witnesses are required to answer the relevant questions presented to them. A question asked to a
witness must be relevant to a fact in issue, and must help establish the same. Their answers when
recorded are called testimonies of witnesses. This questioning of the witness and recording their
answers is called witness examination. Testimonies of witnesses are recorded as answers to the
questions asked to them. These questions are relevant to the facts in issue, and such questioning
is called an examination of the witness. The evidence not only includes answers to questions but
may also include statements made or that is required to be made, by the court and is relevant to
the issue.

The following are the procedures, features and rules governing examination and
questioning of witness in the court of law5.
Witness must take oath; it is the statutory law requirement with exceptions every witness in
criminal cause or matter must be examined upon oath or affirmation in accordance with the law.
Section 198(1) of the criminal procedure Act2 provides that every witness in a criminal cause or
matter shall subject to the provisions of any other written law to the contrary, be examined upon
oath or affirmation in accordance with, The Oaths [Judicial Proceedings] and Statutory
Declaration Act,3 1966. The oath must be administered by the magistrate himself or the officer
authorized by him in that behalf. However a child of tender age who in the opinion of the court is
incapable of understanding the nature and obligation of the oath can give testimony without
taking an oath or affirmation provided that the court is satisfied that child is possess sufficient
intelligence to justify that the reception of his evidence and understands the duty of speaking
truth as per section 127 of the law of evidence Act4.
A witness must provide information with reference to the case in hand; the witness while in
witness box is required to provide information or to adduce evidence which is relevant to the fact
in issue of the case in hand. He or she is not allowed to adduce matters which have no connection
with the matter in dispute. In the case of Madge V. R the High Court quashed both conviction
and sentence of the accused person and ordered the district court of Iringa to try the case de-novo
due to the reason that the complainant throughout her examination in chief did not allege that the
accused had any sexual intercourse with her while in a charge of rape there must be evidence of
penetration of the penis into the vagina though actual emission of seed is not necessary.

2
2- [ Cap 20 R.E 2002].
3
3-Act NO 59 of 1966.
4
4- [Cap 6 R.E 2002].
(A)-Order of Production and Examination of Witness  (Section 135)5 

    The order in which witness are produced and examined shall be regulated by the law and
practice for the time being relating to civil and criminal procedure respectively, and in the
absence of any such law, by the discretion of the Court. Section 135 lays down the order to be
followed in production and examination of witnesses which is left to be regulated by the
code of civil procedure and criminal procedure. If there is no provision for a particular point
in case, then, the court can exercise its own discretion in deciding the order of production of
witnesses.

(B)- Judge to decide as to admissibility of evidence (Section 136)6

When either party proposes to give evidence of any fact, the Judge may ask the party proposing
to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge
shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not
otherwise.

       If the fact proposed to be proved is one of which evidence is admissible only upon proof of
some other fact, such last-mentioned fact must be proved before evidence is given of the fact
first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied
with such undertaking.

         If the relevancy of the alleged fact depends upon another alleged fact being first proved, the
Judge may, in his discretion, either permit evidence of the first fact to be given before the second
fact is proved or acquire evidence to be given of the second fact before evidence is given of the
first fact.

Illustrations 

(a)- It is proposed to prove a statement about a relevant fact by a person alleged to be dead,
which statement is relevant under section 32. The fact that the person is dead must be proved by
the person proposing to prove the statement, before evidence is given of the statement.

(b)-It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the
original is lost must be proved by the person proposing to produce the copy, before the copy is
produced.

5-https://www.srdlawnotes.com/2017/04/examination-of-witnesses-under-indian.html
6- ibid.
©-Stages of Examination of Witness7:
(a)-Examination-in-chief,

(b-)Cross-Examination and

©-Re-examination.

(a)- Examination-in-Chief:

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.The object / purpose behind
conducting the examination-in-chief is to make the witness depose to what he has been called by
the party calling him to prove. In other words, the object of his examination is to get him from
the witness all material facts within his knowledge relating to the party's case. It must be
confined to the relevant fact and no leading questions can be asked. except with the permission
of the Court. 
The court shall permit leading questions to be asked as to matters which are introductory or
undisputed, or which have in its opinion, been already sufficiently proved.

Limit of Examination in chief: 

  In Examination-in chief no leading questions can be put except in certain special cases.
Leading question is one, which suggests the answer. only relevant questions should be asked.  
It should be noted that in examination-in-chief, the lawyer conducting the examination of the
witness, the lawyer should understand the nature and temperament of the witness and ask such
questions which do not irritate the witness. The witness should be asked to answer calmly and
comfortably, and in his own manner as he likes to express in his own words.

(b)- Cross Examination:

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.
According to Section 137, para 2 of the Indian Evidence Act,1872:   The examination of a
witness by the adverse party shall be called his cross-examination. Cross-examination considered
most powerful weapon. According to Philip Wendell, "Cross-Examination is double-edged
weapon, if you know how to wield, it helps to cut enemy's neck Otherwise, it cuts own hands"

Limit-

 It should be remembered that the witnesses must speak to facts and not to opinions inference or
beliefs. A witness may be cross-examined as to previous statements made by him in writing or
reduced into writing. Leading questions may be asked.
7-ibid.
Object8-

The object of the cross examination is to test the truth of statement made by witness, to see how
far is memory is reliable or what powers of observation possesses whether he is partial or
impartial, etc ; in  short it is an attempt to break down a witness or to show that his statement
cannot be relied upon. The object and scope of cross-examination is twofold to weaken qualify
or destroy the case of the opponent; and to establish the party's own case by means of his
opponent’s witnesses. With this view the witness may be asked not only as facts in issue or
directly relevant thereto, but all question

(1) tending to test his means of knowledge,

(2) tending to expose the error, of omission, contradictions and improbabilities in the testimony
or

(3) tending to impeach his credit.

                The object of cross examination is to a impeach the accuracy, credibility and general
value of the evidence given in chief; to sift the facts already stated by the witness, to detect and
expose discrepancies or to elicit suppressed facts which will support the case of cross
examination of party.

Case Law: 

Sukhawant Singh v. State of U.P AIR 1995 SC 1601

 In this case the Supreme Court has held that a witness cannot be thrown open to cross-
examination unless he is first examined-in-chief. Where the prosecution did not examine its
witness and offered him to be cross examined, it was held that this amounted to abandoning one's
own witness, there cannot be any cross-examination without the foundation of examine-in-chief.

©- Re-Examination9:   

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.
 According to Section 137, para 3 of the India evidence Act 1827: The examination of a witness,
subsequent to the cross examination by the party who called him, shall be called his re-
examination. 

8-ibid.
9-https://blog.ipleaders.in/examination-and-cross-examination-of-witnesses-under-the-
indian-evidence-act/.
Purpose / Object  of re-examination10 : 
       
             The purpose / object of re-examination is to afford to the party calling a witness an
opportunity of filing in lacuna or explaining the consistencies which the cross-examination has
observed. in the examination-in-chief of the witness. It is accordingly confined to the explanation
of matter referred to in cross-examination. It should not introduce any new matter unless the
court permits; and if such permission is given, the adverse party may further cross- examine
upon that matter.  

Limit:  

The re-examination shall be directed to the explanation of matters referred to in cross-

examination, and if new matter by permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.

(D)- SECTION- 13811:

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, AIR 2007 Kant. 17). 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, AIR 1998 Mad. 323). The matter of re-
examination 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.
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.

In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High Court of Jammu and
Kashmir that- cross-examination might not be necessary if the witness testimony is prima facie
unacceptable. So, if no relevant facts are answered by the witness or there is no credibility to his
statements, his testimony can be rejected and there is no need for cross-examination in that case.

10- Supra Note-5, same page.

11-https://www.legalbites.in/examination-of-witness/
(E)-Examination of non-witness12:

Section 139
Apart from witness testimonies, there are numerous other forms of evidence admissible in the
Court of law.
Documentary evidence as described in Section 3(2)(e) of the act is one of them. A person might
be called just in order to produce a document. Section 139 of the Act states that- such a person
called in for producing documents, does not become a witness. 
He can be examined in order to establish the credibility of the document. But he cannot be cross-
examined unless he has been called as a witness. 

Section 140
Section 140 talks about the character of a party. “Character” of someone refers to their quality or
characteristics that distinguish them. Especially mental and moral characteristics. It also includes
a person’s reputation in society.
The section states that the witness to a party’s character can be cross-examined if the
examination-in-chief has already been completed. 
The evidence of character is helpful to assist the Court in determining the value of statements
given by the witnesses.

(F)- Leading Questions (Section 141 to Section 143)13: 

Meaning: 
The expression "Leading Questions" literally means a question which itself suggest answer. As
expected by the person asked the same, any questions which leads to answer, or a question which
is pregnant with the answer.

Definition:
Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as, “Any questions
suggesting the answer which the person putting it wishes or expects to receive is called a leading
question."

Bentham:
Bentham defines leading questions as," A question is a leading one, when it indicates to the
witness the real or supposed fact which the examiner expects and desires to have confirmed by
the answer.
It is clear that under this form every sort of information may be conveyed to the witness in
disguise. It may be used to prepare him to give the desired answers to the questions about to be
put to him; the examiner, while he pretends ignorance and is asking for information is, in reality,
giving instead of receiving it.

12- Supra Note -9, same pg.

13-ibid.
While examining, cross-examining, or re-examining a witness, the parties must refrain from asking
leading questions. Leading questions have been described in Section 141 of the Act as- any question that
suggests the answer which the person questioning expects to receive. One party must object if the other
party asks a leading question to the witness.
*Can leading questions be asked to a witness14?
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. However, Section
142 says that leading questions can be asked in an examination-in-chief, or in a re-examination if
the Court permits. The section further states that leading questions can be permitted by the Court
in cases where the facts are introductory or undisputed or those in the opinion of the Court have
already been sufficiently proved. The same was supported by the High Court of Kerala in the
case of Varkey Joseph v. the State of Kerala. 

Section 142 does not mention asking leading questions during cross-examination. But, Section
143 states that leading questions can be asked even in cross-examination. Leading questions
cannot be asked in examination-in-chief, cross-examination, or re-examination only if objected
by the other party. Such questions may be asked if the other party does not object. Even when a
leading question has been objected, it is at the discretion of the Court whether to allow it or not
and the discretion will not be interfered by the Court of appeal or revision except in extreme
cases.
When leading Questions must not be asked (Section 142)15:

Leading questions must not, if objected to by the adverse party, be asked in an examination-in-
chief, or in re-examination, except with the permission of the Court.  The Court shall permit
leading questions as to matters which are introductory or undisputed or which have, in its
opinion, been already sufficiently proved.

When Leading Questions may be asked16? 

According to Section 143 of Indian Evidence Act 1872 Leading questions may be asked in Cross
examination.

14-ibid.
15-Supra Note-5, same pg.
16-ibid.
4-CONCLUSION:

The Indian Evidence Act, 1872 is very necessary for protecting the witnesses, letting him speak
freely without the fear of prosecution.
Judicial interpretations have brought significant positive changes in this act to meet the needs of
the time and have made some provisions more practical. While safeguarding the social life of a
witness, the act serves justice to the fullest extent. By omitting and adding certain provisions, the
act is indeed keeping up with the modern times. Witness plays a very important role in the
administration of criminal and civil justice, and the only way of getting information from a
witness is by asking him questions. The scope for asking questions is limited for the party calling
a witness and is wider to the opposite party in that there is a liberty of not only leading questions
but also asking questions even on irrelevant matters.

5- BIBLIOGRAPHY:

1-The Oaths [Judicial Proceedings] and Statutory Declaration Act No 59 of 1966.

2-https://blog.ipleaders.in/examination-and-cross-examination-of-witnesses-under-the-
indian-evidence-act/

3- https://www.legalbites.in/examination-of-witness/
4- https://www.srdlawnotes.com/2017/04/examination-of-witnesses-under-indian.html