Introduction

The examination of witnesses is a cornerstone of the judicial process, ensuring the integrity and fairness of trials. The Bharatiya Sakshya Adhiniyam, 2023, has introduced refined provisions to address contemporary challenges in the legal system. The role of witness examination in the judicial process cannot be overstated. Witnesses are crucial in bringing forth facts and evidence that aid in the adjudication of cases. Their testimonies often form the backbone of the prosecution or defense, providing the necessary substantiation for the claims and defenses raised. [1]Effective witness examination helps establish the truth by scrutinizing the evidence presented, testing the credibility of witnesses, and revealing inconsistencies or corroborations in their statements. The Bharatiya Sakshya Adhiniyam, 2023, represents a significant step forward in the evolution of Indian evidence law. By updating and refining the provisions related to witness examination, this legislation aims to address the myriad challenges posed by the modern judicial landscape. The 2023 Act acknowledges the complexities introduced by advancements in technology, the increasing volume of digital evidence, and the heightened awareness of the need for witness protection. One of the primary objectives of the Bharatiya Sakshya Adhiniyam, 2023, is to ensure that the process of examining witnesses is both thorough and fair. This includes providing clear guidelines on the admissibility of evidence, protecting witnesses from undue harassment, and ensuring that their testimonies are scrutinized in a manner that upholds their dignity and integrity. The Act’s provisions are designed to prevent the manipulation or coercion of witnesses, thereby ensuring that their testimony remains reliable and credible.

In the Bharatiya Sakshya Adhiniyam, 2023, the examination of witnesses is comprehensively addressed in Chapter X, spanning Sections 140 to 168. These sections meticulously detail the procedural and substantive aspects of witness examination, from the order of production and examination to the protection of witnesses against indecent or scandalous questions. This chapter serves as the legal backbone for managing the examination of witnesses in Indian courts, ensuring that every step of the process is governed by clear and just principles. Section 140 begins with the order of production and examination, providing the court with the discretion to determine the sequence in which witnesses are presented. This allows for a logical flow of testimony, which is crucial in maintaining the integrity of the evidence. Section 141 empowers judges to decide the admissibility of evidence, a critical function in safeguarding the trial’s fairness by ensuring only relevant and reliable evidence is considered.

The Bharatiya Sakshya Adhiniyam, 2023, also acknowledges the digital age’s impact on legal proceedings. With the increasing prevalence of electronic evidence, such as emails, text messages, and social media interactions, the Act recognizes the necessity of adapting legal standards to encompass these new forms of evidence. This includes establishing protocols for the authentication and admissibility of digital evidence, ensuring that it is subject to the same rigorous standards as traditional forms of evidence. Moreover, the Act places a strong emphasis on the protection of witnesses. Witness intimidation and harassment have long been issues of concern in the judicial process, often leading to compromised testimonies and miscarriages of justice.

Types of Examination of Witnesses under the Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam, 2023, outlines the procedures for examining witnesses in detail, ensuring a structured and fair approach to gathering testimony. The examination of witnesses can be broadly categorized into three types: Direct Examination (Examination-in-Chief), Cross-Examination, and Re-Examination. Each type of examination serves a distinct purpose and is governed by specific legal provisions to ensure the integrity and thoroughness of the judicial process.[2]

·       Direct Examination (Examination-in-Chief)

Given Under section 142 Direct examination, also known as examination-in-chief, is a fundamental stage in the judicial process where the party who calls the witness conducts the questioning.[3] The primary objective of this examination is to elicit facts that support the examiner’s case, presenting the evidence in a clear, logical, and unbiased manner. The examiner seeks to establish the witness’s knowledge of the events or facts pertinent to the case without unduly influencing their testimony through suggestive questioning.

During direct examination, the use of leading questions (Section 146) is generally prohibited under Section 142. Leading questions are those that suggest the answer within the question itself, potentially guiding the witness to respond in a specific way. This prohibition is crucial to ensure that the witness’s testimony is genuinely their own and not the product of external influence by the examining attorney. The rationale behind this rule is to preserve the integrity of the witness’s statements, thereby enhancing the credibility of the evidence presented.

Example:

Consider a criminal trial where the prosecution calls a witness who purportedly saw the defendant at the crime scene. The prosecutor, conducting the direct examination, might ask the following questions:

• “Where were you on the night of January 1st?”
• “Did you see anyone near the alley at that time?”

These questions are designed to prompt the witness to recount their observations without leading them to a particular answer. The first question, “Where were you on the night of January 1st?” seeks to establish the witness’s presence at a specific location and time, laying the groundwork for further testimony. The second question, “Did you see anyone near the alley at that time?” aims to uncover any observations the witness might have made regarding the presence of individuals at the crime scene. Both questions are open-ended, allowing the witness to provide their narrative without the influence of suggestive language.

Direct examination is a strategic process where the examiner must carefully craft questions to draw out relevant facts while adhering to legal guidelines. The aim is to build a coherent and persuasive narrative that supports the examiner’s case. This process involves not only the presentation of factual evidence but also the establishment of the witness’s credibility and reliability.

1. Establishing the Witness’s Background: At the beginning of the direct examination, the examiner often starts with questions about the witness’s background to establish their identity and relevance to the case. This can include questions about the witness’s occupation, relationship to the parties involved, and any relevant expertise or experiences. These initial questions help to build a foundation for the witness’s subsequent testimony.
   • Example: “Please state your name and occupation for the court.”
   • Example: “How long have you lived in the neighborhood where the incident occurred?”
2. Laying the Foundation: Before presenting substantive evidence, the examiner must lay a foundation by establishing the context and circumstances surrounding the witness’s knowledge. This ensures that the testimony is relevant and admissible.
   • Example: “What were you doing on the evening of January 1st?”
   • Example: “How well do you know the defendant?”
3. Eliciting Substantive Testimony: The core of direct examination involves eliciting substantive testimony about the facts in question. The examiner must navigate through the witness’s observations, actions, and interactions related to the case. This requires a careful balance of open-ended questions that allow the witness to provide detailed and accurate responses.
   • Example: “Can you describe what you saw when you were near the alley?”
   • Example: “What did you do after you saw the person near the alley?”
4. Addressing Potential Weaknesses: A savvy examiner anticipates potential weaknesses or points of contention that might arise during cross-examination. Addressing these issues proactively during direct examination can help to mitigate their impact.
   • Example: “Was there sufficient lighting for you to clearly see the person near the alley?”
   • Example: “Did anything obstruct your view while you were observing the scene?”
5. Corroborating Evidence: Direct examination often involves the introduction of corroborating evidence that supports the witness’s testimony. This can include physical evidence, documents, or other witnesses’ statements that align with the testimony being presented.
   • Example: “Is this the coat you saw the person wearing near the alley?”
   • Example: “Did you later provide a statement to the police about what you saw?”

·       Cross-Examination

Cross-examination is a critical phase in the judicial process, where the opposing party has the opportunity to question a witness who has already provided testimony during direct examination.[4] The primary objective of cross-examination is to test the accuracy, reliability, and credibility of the witness’s statements. This phase is characterized by its adversarial nature, allowing the examiner to use leading questions to challenge the witness’s testimony and expose any inconsistencies, biases, or fabrications.

Legal Provisions Detailed:

Section 143: This section explicitly authorizes cross-examination, emphasizing its importance in scrutinizing the witness’s evidence. Unlike direct examination, cross-examination permits the use of leading questions, which can suggest the answer within the question itself. This allowance is crucial for testing the witness’s recollection and credibility.

Section 148: This section deals with cross-examination related to the witness’s previous statements. It permits the examiner to confront the witness with prior statements they have made, whether in writing or otherwise, to highlight discrepancies or inconsistencies. This provision ensures that the witness’s current testimony is consistent with their earlier statements, maintaining the integrity of the evidence.

Section 148: Under this section, the examiner is allowed to ask questions that test the veracity of the witness. These questions can probe the witness’s character, conduct, and credibility, provided they are relevant to the case. This provision aims to reveal any factors that might affect the witness’s reliability, such as personal bias or ulterior motives.

Section 149: This section broadens the scope of permissible questions during cross-examination, allowing any questions that are lawful and pertinent to the matter at hand. It ensures that the examiner has sufficient latitude to explore all aspects of the witness’s testimony that could impact the case’s outcome.

Example:

Consider the same criminal trial where the prosecution’s witness testified that they saw the defendant at the crime scene. During cross-examination, the defense counsel might ask:

• “Isn’t it true that it was very dark at the time you claim to have seen the person?”
• “Did you not previously state in your police report that you could not clearly identify the person near the alley?”

These questions are designed to challenge the witness’s ability to accurately observe and identify the defendant, thereby testing the reliability of their testimony.

Cross-examination is an adversarial process that serves several key functions in the judicial system. It not only seeks to undermine the opposing party’s evidence but also strives to uncover the truth by rigorously testing the witness’s testimony.

1. Challenging the Witness’s Credibility: One of the primary goals of cross-examination is to challenge the credibility of the witness. The examiner may ask questions that reveal biases, contradictions, or a lack of knowledge. This can be achieved by highlighting inconsistencies in the witness’s testimony or by bringing up past statements that contradict their current assertions.
   • Example: “You testified earlier that you were sure about the person’s identity, but didn’t you tell the police initially that you were unsure?”
2. Exposing Inconsistencies: Cross-examination allows the examiner to pinpoint any inconsistencies between the witness’s statements during direct examination and their previous statements or other evidence. This process is crucial for testing the reliability of the witness’s testimony.
   • Example: “In your earlier deposition, you mentioned the incident happened at 9 PM, but today you said it was at 10 PM. Can you explain this discrepancy?”
3. Testing Memory and Perception: The examiner can use cross-examination to test the witness’s memory and perception. Questions may be designed to probe the conditions under which the witness made their observations, such as lighting, distance, and time, which could affect the accuracy of their testimony.
   • Example: “How far were you from the alley when you saw the person, and what was the lighting like at that time?”
4. Highlighting Bias or Interest: Cross-examination can reveal any potential biases or interests the witness may have that could influence their testimony. This could include relationships with parties involved in the case, personal animosities, or any benefits they might gain from the case’s outcome.
   • Example: “Isn’t it true that you have had a longstanding dispute with the defendant over property?”
5. Introducing Impeaching Evidence: The examiner may introduce evidence that impeaches the witness’s credibility, such as prior convictions, inconsistent statements, or evidence of dishonest behavior. This helps to cast doubt on the trustworthiness of the witness’s testimony.
   • Example: “Are you aware that your statement conflicts with the surveillance footage obtained from the scene?”

·       Re-Examination

Re-examination is the final phase of witness examination, following cross-examination. It is conducted by the party who originally called the witness, with the aim of clarifying or addressing issues that arose during cross-examination. The purpose of re-examination is to resolve any ambiguities, correct misunderstandings, and reinforce the witness’s testimony by providing additional context or explanation.[5]

Section 146: This section generally restricts the use of leading questions during re-examination, except with the permission of the court. The intention is to ensure that the re-examination process remains focused on clarifying issues rather than introducing new or suggestive elements into the testimony. Section 157 allows a party to put leading questions to their own witness if the witness is declared hostile. While not specifically related to re-examination, this provision underscores the flexibility allowed in dealing with witnesses who do not cooperate or who provide contradictory evidence.

Re-examination is a crucial stage in the examination of witnesses, serving several important functions to ensure the clarity and accuracy of the evidence presented:

1. Clarifying Ambiguities: Re-examination allows the examining party to address any ambiguities or misunderstandings that arose during cross-examination. This might involve providing additional context or elaborating on points that were challenged by the opposing party. By doing so, the party aims to restore the witness’s testimony to its intended meaning and ensure that it is fully understood by the court.
   • Example: “During cross-examination, you mentioned that you were not sure about the time. Can you clarify the exact time based on what you remember?”
2. Correcting Misunderstandings: Sometimes, cross-examination might lead to misconceptions or misinterpretations of the witness’s testimony. Re-examination provides an opportunity to correct these misunderstandings and ensure that the witness’s statements are accurately represented.
   • Example: “It was suggested that you saw the defendant’s face clearly despite the darkness. Can you explain how you were able to identify the defendant under those conditions?”
3. Addressing Points Raised During Cross-Examination: Re-examination is specifically designed to address the issues raised during cross-examination. If the opposing party has raised questions about the witness’s credibility, memory, or perception, re-examination allows the examining party to respond to these challenges and reinforce the witness’s reliability.
   • Example: “The defense questioned your ability to see clearly. Could you explain if there were any factors that helped you to see the scene better than suggested?”
4. Supplementing Testimony: In some cases, re-examination may involve introducing supplementary evidence or clarifying points that were previously covered in direct examination. This helps to ensure that the witness’s testimony is comprehensive and that all relevant details are presented.
   • Example: “In your direct examination, you mentioned seeing the defendant’s distinctive clothing. Can you provide more details about the clothing and how it helped you identify the defendant?”
5. Restoring the Witness’s Credibility: Re-examination provides an opportunity to restore the witness’s credibility if their testimony was undermined during cross-examination. By addressing the challenges directly and providing additional information, the party can bolster the witness’s reliability and reinforce their case.
   • Example: “The defense implied that your observation was affected by external factors. Can you elaborate on the specific conditions that allowed you to make an accurate identification?”

Leading Questions

Leading questions are questions that suggest the answer within the question itself. These types of questions are generally designed to prompt the witness to agree with a specific statement or to provide a particular response. The use of leading questions is carefully regulated to maintain the integrity of the witness’s testimony and to ensure that the witness provides their own observations and experiences without undue influence from the examiner.[6]

Section 142 specifies that leading questions cannot be asked during the examination-in-chief or re-examination unless the court allows it. The rationale behind this restriction is to ensure that the witness’s testimony is not tainted by suggestions or prompts from the examining party. By preventing leading questions, the court aims to obtain a genuine and unaltered account of the facts as perceived by the witness. This approach helps to preserve the credibility and reliability of the evidence presented. Section 143 allows leading questions to be asked during cross-examination. The adversarial nature of cross-examination makes leading questions an essential tool for the opposing party to challenge the witness’s testimony. Leading questions during cross-examination can help expose inconsistencies, test the witness’s memory and perception, and reveal any biases or motives that might affect their credibility. This provision ensures that the cross-examining party has the means to rigorously scrutinize the witness’s statements and uncover the truth.

Section 158 provides for the use of leading questions by a party to their own witness if the witness is declared hostile. A hostile witness is one who shows adverse interests or is not cooperative with the party that called them. In such cases, the court allows leading questions to be used to extract relevant information that the witness might otherwise withhold or distort. This provision ensures that even uncooperative or adverse witnesses can be effectively examined to obtain crucial evidence.

Leading questions are essential in the judicial process, especially during cross-examination. For example, in a scenario where a witness claims to have seen the defendant at the crime scene, a defense attorney might use leading questions during cross-examination to challenge this testimony. The defense could ask, “Isn’t it true that it was too dark to clearly see anyone at that time?” This question suggests that the witness could not have seen the defendant clearly, prompting the witness to reconsider or clarify their earlier statement. Such questions help to test the accuracy and reliability of the witness’s observations and ensure that any potential doubts or inconsistencies are brought to light.

In contrast, during direct examination, leading questions are generally prohibited to prevent the examiner from unduly influencing the witness’s testimony. The aim is to allow the witness to narrate their account in their own words, thereby providing an untainted and genuine version of the facts. For instance, instead of asking, “You saw the defendant at the scene, didn’t you?” the examiner should ask, “What did you see at the scene?” This approach ensures that the testimony is authentic and not shaped by the examiner’s suggestions.

Leading questions are also critical when dealing with hostile witnesses. For example, if a witness initially aligned with the prosecution starts giving answers that support the defense, the prosecution might seek the court’s permission to treat the witness as hostile. Once granted, the prosecution can ask leading questions such as, “You previously stated in your affidavit that you saw the defendant commit the crime, correct?” This helps the prosecution to steer the testimony back towards the facts they aim to establish, even when the witness is not cooperating. The use of leading questions must be balanced to maintain fairness and integrity in the judicial process. While they are crucial during cross-examination for revealing the truth and testing the witness’s reliability, their use during direct examination is restricted to prevent undue influence. This balance ensures that the witness’s testimony remains as unbiased and accurate as possible, contributing to a fair trial and just outcome.

Impeaching the Credit of a Witness

Impeaching the credit of a witness (section 158) refers to the process of challenging the reliability, credibility, and trustworthiness of a witness’s testimony. This process is crucial in a trial, as the outcome often hinges on the perceived honesty and accuracy of witness statements. Under the Bharatiya Sakshya Adhiniyam, 2023, the legal framework provides specific provisions and methods for impeaching the credit of a witness to ensure that the evidence presented is scrutinized and reliable.[7]

Section 158 explicitly deals with the impeachment of the credit of a witness. This section outlines several methods by which a party can challenge the credibility of a witness. These methods include presenting evidence that the witness has been bribed or has accepted a bribe, has a prior record of conviction, or has made previous inconsistent statements. The objective is to provide the court with information that might discredit the witness’s reliability and thereby affect the weight of their testimony.One of the primary ways to impeach a witness’s credibility is by demonstrating that the witness has a history of dishonesty or criminal behavior. For instance, if a witness has previously been convicted of perjury or fraud, this fact can be brought to the court’s attention to suggest that the witness may not be trustworthy. Such evidence casts doubt on the witness’s current testimony, suggesting that they might be lying or exaggerating their statements in the present case.

Another method of impeachment involves showing that the witness has a motive to lie. This can include financial incentives, personal grudges, or other reasons that might cause the witness to provide false or biased testimony. For example, if it can be shown that the witness stands to gain financially if the defendant is convicted, this information can be used to argue that the witness’s testimony is not impartial and may be influenced by personal gain.

Prior inconsistent statements are also a powerful tool for impeaching a witness’s credibility. If a witness has made statements in the past that contradict their current testimony, these inconsistencies can be highlighted to suggest that the witness is either mistaken or deliberately lying. For example, if a witness testified in an earlier proceeding that they were not present at the scene of the crime but now claims to have witnessed the event, this contradiction can severely undermine their credibility.

The demeanour and conduct of the witness during testimony can also be grounds for impeachment. If a witness appears evasive, nervous, or overly confident, these behaviours can be pointed out to suggest that the witness is not being entirely truthful. Additionally, if the witness’s testimony is vague, unclear, or filled with gaps, these issues can be used to argue that the witness is not reliable. Reputation evidence is another method for impeaching a witness. Testimony from other individuals about the witness’s character and reputation for honesty or dishonesty can be introduced. For example, if multiple people testify that the witness is known for being untruthful, this can significantly impact the court’s perception of the witness’s credibility.

Example:

Consider a criminal trial where a key witness for the prosecution testifies that they saw the defendant commit the crime. During cross-examination, the defense attorney seeks to impeach the witness’s credibility by presenting evidence of the witness’s previous conviction for fraud. The defense attorney might ask, “Isn’t it true that you were convicted of fraud two years ago?” This question aims to suggest that the witness has a history of dishonesty, thereby casting doubt on their current testimony.

In addition, the defense might present evidence that the witness had previously stated in a police report that they did not see the defendant at the crime scene. The defense attorney could question the witness, “Did you not tell the police in your initial statement that you could not identify the person you saw?” This approach highlights inconsistencies in the witness’s statements, suggesting that their testimony is unreliable.

Refreshing the Memory of a Witness

Refreshing the memory of a witness is a legal procedure that allows a witness to use certain aids, such as documents, notes, or prior statements, to help them recall details of events about which they are testifying.[8] This process is particularly important when a witness’s memory of an event has faded over time or when the specifics of the event are complex and detailed. Under the Bharatiya Sakshya Adhiniyam, 2023, specific provisions regulate the circumstances and manner in which a witness’s memory can be refreshed.

Section 162 allows a witness to refresh their memory by referring to any writing made by themselves at the time of the event or soon after while their memory was fresh. This writing can be used either while the witness is on the stand or before they testify. The purpose of this provision is to ensure that the witness can provide accurate and reliable testimony based on their recollection of events recorded contemporaneously. This helps in maintaining the integrity of the testimony by allowing the witness to recall details that might otherwise be forgotten or confused. Section 164 gives the adverse party the right to inspect any writing used by the witness to refresh their memory. This section ensures transparency and fairness in the process of refreshing memory. By allowing the adverse party to examine the document, the court ensures that the writing used does not unfairly influence the witness’s testimony and that the information provided is credible and unbiased.

Judge’s Power to Put Questions or Order Production

Section 165 Judge’s Power to Put Questions or Order Production. The power of a judge to put questions or order the production of documents is an essential aspect of the judicial process, ensuring that the court can ascertain the truth and administer justice effectively. Under the Bharatiya Sakshya Adhiniyam, 2023, specific provisions empower judges to take an active role in the examination of witnesses and the production of evidence.[9] This proactive approach helps in clarifying ambiguities, resolving doubts, and ensuring that all relevant facts are brought before the court.

Section 165 of the Bharatiya Sakshya Adhiniyam, 2023, grants judges broad authority to question witnesses and order the production of documents or other material evidence at any stage of the trial. This section underscores the judge’s duty to seek the truth and provides the necessary powers to fulfill this role. The provision allows judges to ask any questions they deem necessary, regardless of whether the questions pertain to issues raised by the parties. This proactive involvement by the judge is designed to ensure that the court can thoroughly and accurately assess the evidence and make well-informed decisions.

Judges can use their powers under Section 165 to fill gaps in the evidence, clarify points of confusion, and ensure that no relevant information is overlooked. For example, if a witness’s testimony is vague or ambiguous, the judge may ask direct questions to elicit clearer responses. Similarly, if the judge believes that additional documents or materials are necessary to understand the facts fully, they can order their production. This authority is critical for ensuring that justice is not only done but also seen to be done, by ensuring that all pertinent evidence is considered. The power to put questions and order the production of evidence is not unlimited and must be exercised judiciously. The judge must ensure that their questions do not indicate bias or prejudice and that the examination remains fair and impartial. The questions asked by the judge should be aimed at clarifying the facts and assisting in the fair administration of justice, rather than advocating for either party. This careful balance helps maintain the integrity of the judicial process and the judge’s role as an impartial arbiter.

Example:

Consider a civil case involving a contract dispute where the plaintiff alleges that the defendant breached the contract by failing to deliver goods on time. During the trial, both parties present their evidence and witnesses. However, the testimony provided by the witnesses is somewhat unclear about the exact timeline of the delivery and the reasons for the delay. The judge, using their powers under Section 165, might ask the following questions to clarify the matter:

“Can you specify the exact date when the order was placed and when the delivery was expected?” “What reasons did the defendant provide for the delay, if any?” These questions help to fill in critical details that might be missing from the parties’ presentations and ensure that the court has a complete understanding of the facts before making a decision.

Distinction between examination-in-chief, cross-examination and re-examination

Case Laws:

1. Ghulam Rasool Khan v. Wali Khan[10]

In this case, the dispute involved the testimony of a witness whose statements were brought into question. The defense argued that the witness’s testimony should not be accepted without cross-examination.The High Court of Jammu and Kashmir held that cross-examination might not be necessary if the witness’s testimony is prima facie unacceptable. This ruling underscores the principle that the court has the discretion to evaluate the credibility and reliability of a witness’s testimony at face value. If the testimony appears inherently unreliable or unacceptable on the surface, the necessity for cross-examination to challenge the testimony is diminished.

• State of Karnataka v. K. Yarappa Reddy[11]

During the examination-in-chief, the Investigating Officer (IO) was unable to recall specific details without referring to his records. The defense objected to the IO refreshing his memory by checking his records during testimony. The Supreme Court held that the objection by the defense was untenable. The Court emphasized that an Investigating Officer or any witness is permitted to refresh their memory by referring to documents or records while giving evidence. This is crucial for ensuring that the testimony is accurate and reliable. The ruling underscored that the integrity of the judicial process is maintained by allowing witnesses to refer to records to provide precise information, rather than relying solely on potentially fallible memory.

• Sodhi Pindi Das v. Emperor[12]

In this case, the witness needed to refresh his memory using a document during testimony. The issue was whether it was essential for the witness to state orally that, although he had no specific recollection of the facts, he was certain that the facts were correctly recorded in the document. The Lahore High Court held that it was essential for the witness to orally affirm that, while he had no specific recollection of the facts themselves, he was sure that the facts were accurately recorded in the document. This requirement ensures that the document used to refresh the witness’s memory is reliable and accurately reflects the facts.

• Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel[13]

The case involved the use of documents to refresh a witness’s memory during testimony. The question was whether a witness needed to specifically state that they had no specific recollection of the facts and were sure that the facts were correctly recorded in the document before using the document. The Supreme Court held that it was not necessary for a witness to explicitly state that they had no specific recollection of the facts and were sure the facts were correctly recorded in the document before using the document to refresh their memory. The Court ruled that the procedural requirement should not be overly rigid and that the primary concern should be the reliability and accuracy of the witness’s testimony.

• Parmeshwari Devi v. State[14]

In this case, the appellant, Parmeshwari Devi, was involved in a criminal trial where certain documents were produced in court pursuant to a summons issued. The defense sought to cross-examine the individual who had produced the documents. The Supreme Court held that under Section 139 of the Indian Evidence Act, merely producing a document in response to a summons does not make the individual who produced it a witness. Consequently, such a person cannot be cross-examined unless and until they are formally called as a witness in the trial. The Court clarified that the mere act of producing a document does not imply that the person is giving testimony or is subject to cross-examination.

• Sukhwant Singh v. State of Punjab[15]

In this case, the appellant, Sukhwant Singh, was involved in a criminal trial where the prosecution attempted to tender a witness for cross-examination without first conducting an examination-in-chief. The Supreme Court held that tendering a witness for cross-examination without first conducting an examination-in-chief is not permissible. The Court emphasized that the proper procedure involves first conducting an examination-in-chief to establish the witness’s testimony before allowing the defense to cross-examine the witness. This ensures that the defense has a clear understanding of the witness’s testimony and can effectively challenge it during cross-examination. Skipping the examination-in-chief would undermine the fairness of the trial and the integrity of the judicial process.

• Pannayar v. State of Tamil Nadu[16]

In the case of Pannayar v. State of Tamil Nadu, the appellant was involved in a criminal trial where issues arose regarding the scope of re-examination of a witness. The prosecution sought to introduce new facts during re-examination that were not addressed during cross-examination. The Supreme Court held that the purpose of re-examination is solely to clarify doubts or ambiguities that arose during cross-examination. It is not permissible to use re-examination to supplement the examination-in-chief by introducing totally new facts that have no concern with the cross-examination. The Court emphasized that re-examination should be limited to addressing points raised during cross-examination to ensure that the testimony remains focused and relevant to the matters being contested.

• Gopal Saran v. Satyanarayan[17]

In this case, Gopal Saran was involved in a civil dispute with Satyanarayan. The court had ordered cross-examination of a witness presented by the party. However, the party failed to subject the witness to cross-examination despite the court’s order. The Supreme Court held that if a party fails to subject their witness to cross-examination in spite of a court order, it is not safe to rely on the examination-in-chief of that witness. The court emphasized that cross-examination is a crucial part of the judicial process that tests the credibility and reliability of the witness’s testimony. Without it, the testimony given during the examination-in-chief remains unchallenged and cannot be deemed fully credible.

• Abuthagir v. State Rep. by Inspector of Police, Madurai[18]

In this criminal case, the delay in the examination of a witness was brought into question. The defense argued that this delay cast doubt on the veracity of the prosecution’s case. The Supreme Court held that a plausible explanation for the delay in the examination of a witness is not a ground to doubt the veracity of the prosecution case. The Court acknowledged that delays can occur due to various legitimate reasons and that such delays should not automatically lead to the discrediting of the witness’s testimony or the prosecution’s case. Each case must be assessed on its own facts and circumstances, and a reasonable explanation for the delay can mitigate concerns regarding the credibility of the testimony.

1. Atul Bora v. Akan Bora[19]

In the case of Atul Bora v. Akan Bora, , the Court held that Section 144 has no application when the witness is sought to be cross-examined by the election-petitioner, has not been asked any question on any contract, grant or other disposition of property.

CONCLUSION

The examination of witnesses as outlined in the Bharatiya Sakshya Adhiniyam 2023 is a fundamental component of the judicial process, essential for ensuring fair trials and the integrity of legal proceedings. The Act meticulously details the various stages of witness examination—Examination in Chief, cross-examination, and re-examination—each serving distinct purposes in the quest for truth and justice.

Leading questions are carefully regulated to balance the need for uncovering the truth with the protection of witnesses from undue influence. While essential in cross-examination, they are restricted during direct examination to maintain the authenticity of the witness’s testimony.

Impeaching the credit of a witness is another critical aspect covered under the Act, providing mechanisms to challenge the credibility of witnesses through evidence of dishonesty, prior convictions, or inconsistent statements. This process is vital for the court to assess the reliability of the testimonies presented. The updated provisions in the 2023 Act reflect an understanding of contemporary challenges, including the complexities introduced by digital evidence and the need for witness protection. By providing clear guidelines and protections, the Act aims to uphold the dignity and integrity of witnesses while ensuring that the judicial process remains thorough and fair.

References

• https://www.drishtiias.com/daily-updates/daily-news-editorials/implementing-bharatiya-sakshya-adhiniyam
• https://www.advocatekhoj.com/library/bareacts/bharatiyaaakshya2023/142.php?Title=Bharatiya%20Sakshya%20Adhiniyam,%202023&STitle=Examination%20of%20witnesses
• https://blog.ipleaders.in/examination-of-witnesses/
• https://lawctopus.com/clatalogue/clat-pg/cross-examination-of-witness-the-indian-evidence-act/#:~:text=Cross%2Dexamination%20is%20a%20fundamental,or%20biases%20in%20their%20testimony.
• https://blog.ipleaders.in/power-court-order-recall-re-examination-witness/
• https://www.legalserviceindia.com/legal/article-9997-leading-questions-the-hidden-answers.html
• https://www.writinglaw.com/refreshing-memory-evidence-act/
• https://thelawgist.org/judges-power-to-put-questions-or-require-production-of-documents-section-165/#:~:text=Courts%20are%20tasked%20with%20delivering,proper%20proof%20of%20relevant%20facts

[1] https://www.drishtiias.com/daily-updates/daily-news-editorials/implementing-bharatiya-sakshya-adhiniyam

[2]https://www.advocatekhoj.com/library/bareacts/bharatiyaaakshya2023/142.php?Title=Bharatiya%20Sakshya%20Adhiniyam,%202023&STitle=Examination%20of%20witnesses

[3] https://blog.ipleaders.in/examination-of-witnesses/

[4] https://lawctopus.com/clatalogue/clat-pg/cross-examination-of-witness-the-indian-evidence-act/#:~:text=Cross%2Dexamination%20is%20a%20fundamental,or%20biases%20in%20their%20testimony.

[5] https://blog.ipleaders.in/power-court-order-recall-re-examination-witness/

[6] https://www.legalserviceindia.com/legal/article-9997-leading-questions-the-hidden-answers.html

[7] https://thelawgist.org/impeaching-credit-of-witness-section-155/

[8] https://www.writinglaw.com/refreshing-memory-evidence-act/

[9] https://thelawgist.org/judges-power-to-put-questions-or-require-production-of-documents-section-165/#:~:text=Courts%20are%20tasked%20with%20delivering,proper%20proof%20of%20relevant%20facts.

[10] Ghulam Rasool Khan v. Wali Khan AIR1983J&K54

[11]State of Karnataka v. K. Yarappa Reddy AIR 2000 SC 185

[12] Sodhi Pindi Das v. Emperor AIR 1938 Lah 629

[13] Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel AIR 1969 SC 851

[14] Parmeshwari Devi v. State AIR 1977 SC 403

[15] Sukhwant Singh v. State of Punjab AIR 1995 SC 1601

[16] Pannayar v. State of Tamil Nadu AIR 2010 SC 85

[17] Gopal Saran v. Satyanarayan AIR 1989 SC 1141

[18] Abuthagir v. State Rep. by Inspector of Police, Madurai  AIR 2009 SC 2797

[19] Atul Bora v. Akan Bora AIR2007GAU51