Examination of Witnesses**

Order of Examination

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) lays down the general sequence for the examination of witnesses to ensure a systematic and fair presentation of evidence.

Order in which witnesses are produced and examined

• General Rule: Witnesses are produced and examined in such order as the party producing them thinks fit.

• Prosecution First: In criminal trials, the prosecution typically presents its witnesses first to establish the case against the accused. This is followed by the defence presenting its witnesses.

• Court's Discretion: The court retains discretion to alter the order of witnesses or recall a witness if it deems it necessary for a just decision (Section 79 BSA).

• Purpose: The order of examination ensures a logical flow of evidence, allowing the court to build a case step-by-step and understand the context of each piece of testimony.

Examination-in-Chief

Examination-in-chief is the first stage of questioning a witness, conducted by the party who calls the witness.

Leading questions forbidden

• General Prohibition: Section 59 BSA states that questions suggesting the answer which the examining party wishes for are forbidden in examination-in-chief, except in the circumstances hereinafter appearing.

• What is a Leading Question: A leading question is one that suggests a particular answer, for example, "You saw the accused running away, didn't you?"

• Purpose: To allow the witness to give their testimony freely and without leading the court to a particular conclusion through suggestive questioning.

When leading questions may be asked

• Exceptions: Section 59 BSA permits leading questions in examination-in-chief in certain circumstances:

  • When they are asked for the purpose of identifying some person or thing, or to find out the direction of a document, or any other process of the same kind.

  • When they are asked for the purpose of refreshing a witness's memory.

  • When the witness is hostile (though this is more related to cross-examination).

• Purpose of Exceptions: These exceptions are for practical reasons, allowing the examination to proceed efficiently when factual recall is needed or when the witness is unable to recall information otherwise.

Cross-Examination

Cross-examination is the questioning of a witness by the opposing party, crucial for testing the veracity and reliability of the testimony.

When cross-examination applies

• Witnesses of Opposite Party: Any witness presented by one party can be cross-examined by the opposing party.

• Exceptions: Witnesses summoned by the court itself, or witnesses who are hostile to the party producing them, may also be subject to cross-examination under court permission.

Leading questions allowed

• Permitted: Section 60 BSA states that any questions, re-fixed by the court or the opposite party, may be asked in cross-examination. This includes leading questions.

• Purpose: Leading questions are permitted in cross-examination to effectively probe the witness's testimony, challenge their assertions, and elicit specific information or admissions.

Scope of cross-examination

• Wide Scope: Section 61 BSA states that witnesses may be cross-examined as to previous statements made by them in writing or reduced into writing, and by the production of such writings.

• General Principle: The cross-examiner can ask questions relating to any fact in issue or any relevant fact, including facts that may impeach the credit of the witness.

• Impeaching Credit: This includes questioning the witness's truthfulness, impartiality, knowledge, or memory.

Impeaching credit of witness

• Section 61 BSA: A witness may be cross-examined as to his previous statements in writing, or reduced into writing, and by the production of such writings.

• Section 62 BSA: A witness who calls as his witness any witness to the facts of the case, to the effect that such witness is unworthy of belief, may be cross-examined generally by the opposite party.

• Methods: The credit of a witness can be impeached by showing that the witness is unworthy of belief by:

  • Proving that they have been bribed, or have made contrary statements.

  • Showing that their testimony is inconsistent with other facts.

  • Questioning their capacity to perceive, remember, or narrate the facts.

Re-Examination

Re-examination is the final stage of questioning a witness, conducted by the party who originally called them.

Purpose of re-examination

• Clarification: The object of re-examination is to allow the party to explain any matter which has arisen in cross-examination.

• Removing Adverse Impression: It aims to clear up any doubt or misunderstanding that may have been created by the cross-examination.

Limit of re-examination

• Scope: Re-examination must be confined to the matters arising out of the cross-examination. New questions or facts that were not touched upon in the examination-in-chief or cross-examination cannot be introduced.

• Court's Permission: The court has the discretion to allow further examination if it is deemed necessary.

Order of examinations

• Standard Order: The general order is Examination-in-chief, followed by Cross-examination, and then Re-examination.

• Court's Discretion: The court may permit the order to be varied if it appears necessary.

Witnesses to be first examined, then to be recalled only by leave of the Court

• Initial Examination: Witnesses are first examined in chief and cross-examined.

• Recall: A witness, once examined, cannot be recalled for further examination or cross-examination except with the leave of the Court. This is to prevent harassment and ensure the trial progresses smoothly.

Production of witnesses

• Party's Responsibility: The party intending to prove a fact must produce the witnesses who can prove it.

• Court's Role: If a party fails to produce a necessary witness, the court may, on its own motion, summon such witness if it believes their testimony is essential for a just decision (Section 79 BSA).