LECTURE 3: EXAMINATION OF WITNESS: TYPES AND ODER OF EXAMINATION.

QUESTION: What are the various types of examination? What is the nature of examination in chief,
cross examination and re-examination? What is the order of examinations?

ANSWER: OF THE EXAMINATION OF WITNESSES: SECTION 140-168 of BSA:

Section 140 of BSA lay down that the order in which witnesses are to be produced shall be regulated by the
law and practice for the time being relating to Civil and Criminal Procedure respectively. The order of
examination of witnesses involves two things:

(1) Which party is to examine his witnesses first;

(2) In what order the witnesses are to be examined by a party. Order XVIII of C.P.C. and the Chapters IXX,
XX, XXI, XXII OF BNSS deal with the manners of the examination of witnesses

In civil cases the party who has the right to begin, i.e., on whom the burden of proof lies examines his
witnesses first. In criminal cases the prosecution has to examine its witnesses first.

THE ORDER OF EXAMINATION OF WITNESSES:-Primarily it is lawyer’s privilege to determine the

order in which the witnesses should be produced and examined. The arrangement of witnesses is a matter of
experience and skill. Though the counsel has discretion to produce his witnesses in the order he likes, this
section gives the court a power to dictate the order in which the witnesses may be produced.

EXCLUSION OF WITNESSES FROM COURT-ROOM:-When the evidence of a party begins the

witnesses must be kept out of the court room. They should be examined one by one and when witness is
being examined other witnesses to be examined afterwards must not be allowed to remain in the court-room.
If he is present in the court-room he should be asked to go out. If a witness remains in the court-room while
another witness is being examined his examination cannot be refused, only a note is to be made to the extent
that he was present in the court-room when another witness was being examined. (Subh Karan v.
Kedarnath, 1941, All)

EXAMINATION-IN-CHIEF [SECTION 142 of BSA]:- The examination of witness by the party who
calls him shall be called his examination-in-chief.

CROSS-EXAMINATION: The examination of a witness by the adverse party shall be called his cross-
examination.

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RE-EXAMINATION: The examination of a witness, subsequent to the cross-examination by the party
who called him, shall be called his re-examination. Where a party not subjecting to cross examination in
spite of order of Court it is not safe to rely on examination-in-chief.

DIFFERENCE BETWEEN EXAMINATION-IN-CHIEF, CROSS-EXAMINATION AND RE-

EXAMINATION

EXAMINATION-IN-CHIEF CROSS-EXAMINATION RE-EXAMINATION

1. Examination-in-Chief is the 1. Cross examination is 1. Re-examination is examination of
examination of witness by a examination of witness by witness to remove inconsistency
person calling to him. opposite party. which may have arisen during
examination-in-chief and cross
examination.
2. The order of examination-in- 2. The cross-examination is 2. The order of re-examination is last.
chief is first. second in order.
3. The purpose of examination- 3. The purpose of cross- 3. The purpose of re-exami-nation is to
in-chief is to take such examination to test the veracity remove inconsistency which may
testimony for which he is of witness by impeaching his have arisen during examination-in-
called by party. credit. chief and cross-exa-mination.
4. No leading question may be 4. Leading question may freely be 4. Leading question cannot be asked in
asked in examination-in-chief asked in cross examination. re-examination and no new matter
without permission of court. should be in introduced in re-
examination without permission of
Court.
5. Examination-in-chief is part 5. Cross-examination is most 5. Re-examination is not necessary it is
and parcel of a judicial essential for extracting the truth not essential part of judicial
proceeding. and is essential part of judicial proceeding.
proceedings.

ORDER OF EXAMINATION [SECTION 143 of BSA]:- Witnesses shall be first examined-in-chief then
(if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The
examination and cross-examination must relate to relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his examination-in-chief.

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DIRECTION OF RE-EXAMINATION:- The re-examination shall be directed to explanation of matters
referred to in cross-examination; and if, new matter is, by permission of the court, introduced in re-
examination, the adverse party may further cross-examine upon that matter. The object of examination-in-
chief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the
witness. The witness can give evidence of fact only and no evidence of law. Cross-examination, if properly
conducted, is one of the most useful efficacious means of discovering the truth. Cross examination is not
confined to matter proved in examination-in-chief, the slightest examination-in-chief even for formal proof
gives right to the cross-examiner to put questions about the whole of his case. If nay party has a right to
participate in inquiry or trial, then, such party cross-examines the witness(s) after they are examined by the
Court during enquiry under Section 143 of BSA.
ADMISSIBILITY OF EVIDENCE OF PERSON WITH UNFINISHED CROSS-EXAMINATION:-
Where evidence of defendant was recorded on commission. Cross-examination was only partly held but
there was death of defendant in the meantime. It was held that his evidence will not be inadmissible as there
was no provision under law that if witness was not cross-examined either in full or part his evidence would
be absolutely rendered inadmissible. It was further held that how much weight shall be attached should be
decided considering other facts and circumstances surrounding it and provisions of Section 27 of BSA will
not be applicable in such a case. (Dever Park Builders Pvt. Ltd. v. Madhuri Jalan, 2002, Cal). If a witness
after being examine up to the stage of examination does not subject to cross-examination in spite of the
order of the Court, the examination-in-chief cannot be relied upon. (Gopal Saran v. Satyanarayan, 1989,
SC).
EFFECT OF NOT GIVING OPPORTUNITY TO CROSS-EXAMINE A WITNESS:-If no opportunity
is given to cross-examine a witness his evidence must be excluded from consideration. The evidence of
witness, examined before the charge is framed, but not produced for cross-examination, is not admissible.
(Sanatan Das v. DasarathiTah, 1959, Cal).
RE-EXAMINATION:- This party who called the witness may, if he likes and if it be necessary, re-
examine him. The re-examination must be confined to the explanation of matters arising in cross-
examination. The proper purpose for re-examination is by asking questions as may be proper to draw forth
an explanation or meaning of expressions used by the witness in cross-examination, if they are doubtful.
New matters may, however, be introduced by permission of the Court and if that is done, the adverse party
has a right to cross-examine the witness on that points. The purpose of re-examination is only to get the
clarification of some doubts created in the cross-examination. (Pannayar v. State of Tamil Nadu, 2010,
SC). There is no warrant that re-examination should be limited to one or two questions and so if the
exigency requires any number of questions can be asked in re-examination. (Rashmi alias Rameshwar v.
State of M.P., 1999, SC).

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LECTURE 4:- LEADING QUESTIONS AND LAWFUL QUESTIONS AND IMPEACHING
CREDIT OF WITNESS.

QUESTION: Explain the following:

a) Leading questions
b) Hostile witness
c) Impeaching credit of witness

ANSWER: LEADING QUESTIONS: SECTION 146 of BSA

Section 146(1) of BSA defines “leading question.” Section 146(2) of BSA lays down that leading questions
must not be put in examination-in-chief or re-examination except with the permission of the Court. It also
lays down that the court should permit leading questions in examination-in-chief and re-examination as to
the matters which are introductory, which are undisputed or which has already been sufficiently proved in
the opinion of the Court. Section 146(3) of BSA lays down that leading questions may be put in cross-
examination.

Section 146(1) of BSA lay down that if a question suggests as answer which the person putting the question
wishes to receive it is a leading question. A question is leading one when it indicates to the witness the real
or supposed fact which the examiner expect and desires to be confirmed by the answer. Whether a question
is leading is to be determined by the circumstances in which the question arises. For example, is the
plaintiff your brother? Have you not lived for 10 years with him? It this boy 10 years of age? Is not your
Shyam? Do you reside at Allahabad? Are you not in service of Shyam? Have you not lived for ten years
with Shyam?

In these questions, the examiner clearly suggests the answer. In such questions the person putting the
questions is really giving answer instead of receiving in from the witness. In leading questions while the
examiner pretends ignorance and is asking for information but he really gives the answer himself instead of
receiving it.

Generally, the answer to the leading questions is giving 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”. Section 146 of BSA lay down that
leading questions should not be put in examination-in-chief or re-examination if they are objected to. The
Court may permit leading question to draw the attention of the witness which cannot otherwise be called to
matter under inquiry trial or investigation. The witness must account for what he himself had seen. The
section provides exceptions to the general rule stated above. Leading questions may be put in examination-
in-chief or re-examination by the order of the Court:

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 (1) As to matter which are introductory;
(2) Which are undisputed; or
(3) Which in the opinion of the Court have already been proved?

Besides these exceptions under Section 157 of BSA, a Court can allow a party examination his own witness
to put leading questions by way of cross-examination.

IF OBJECTED TO:- It should be borne in mind that if the opposite side 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 overrules objection. Section 146 of BSA lays down that
leading questions may be put in cross-examination.

NO MISLEADING QUESTION IN CROSS-EXAMINATION:- A counsel cannot put question in cross-

examination assuming that some facts have been proved or admitted though he can put leading questions.
Suppose a witness appears for the plaintiff, the defendant tries to show that the witness is a servant of the
plaintiff and so he is an interested witness. The proper question to be put by the defendant in cross-
examination would be “Are you a servant of the plaintiff?” A question “How long have you been in service
of the plaintiff?” is not proper as it assumes that the fact that the witness is a servant of the plaintiff has
either been proved or it has been admitted by the witness Suppose, the case of a wife against her husband is
that he misbehaves and beats her but the husband denies the allegation. The husband appears in Court to
deny the allegation. The cross-examiner cannot put a question “May I ask if you have left off beating your
wife?” Such questions are misleading.

EXCLUSION OF EVIDENCE: SECTION 156 of BSA

This section deals with ‘Exclusion of evidence to contradict answers to questions testing veracity
(correctness). According to it:- When a witness has been asked and has answered any question which is
relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence
shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false
evidence.

Explanation 1:- If a witness is asked whether he has been previously convicted of any crime and denies it,
evidence may be given of his previous conviction.
Explanation 2:- If a witness is asked any question tending to impeach his impartiality, and answers it by
denying the facts suggested, he may be contradicted. Illustrations:- A claim againsed an underwriter is
resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made a

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fraudulent claim. He denies it. Evidence is offered to show that he did make such a claim. The Evidence is
inadmissible.

OBJECT: The object of the section is to prevent trials being spun out to an unreasonable length. If
every answer given by a witness upon the additional facts mentioned in section 149 of BSA could be made
the subject of fresh inquiry, a trial might never end. These matters are after all not of the first importance,
beyond what is comprised in the exceptions.
PRINCIPLE:- When a witness deposes to facts which are relevant, evidence may be given in contradiction
of what he has stated. But when what he deposes to affects only his credit, no evidence to contradict him can
be led for the sole purpose of shaking his credit by injuring his character. However, a witness answering
falsely can be proceeded against for giving false evidence under section 229 of the BNS. There are two
exceptions to this: - 1. Previous conviction when denied can be proved by section 334 of BNSS. and any
fact tending to impeach his impartiality when denied can be proved.

HOSTILE WITNESS: SECTION 157 of BSA

A witness is generally deposed to state in favour of the person preceding him. He will mostly not be inclined
to state anything favourable to the opponent if he can help it. It is, therefore, allowed that the opponent, in
order to illicit the truth, may cross-examine the witness, put leading questions and impeach his credit under
Sections 148 of BSA and 149 of BSA. On the same ground the person examining a witness is not allowed
to put those questions which may be put in cross-examination.

But there are cases where the rule is to be relaxed at the discretion of the court, as for instance, where is a
surprise and the witness unexpectedly turns hostile. In such cases the party proceeding should be given
permission to test his veracity and to impeach his credit. A witness whether of one party or another should
not be given more credit than he relay deserves.

In Murugesan and others v. S. Pethaperumal, 1999, Madars High Court said:

“It is clear from Section 157 of BSA (Section 154 of IEA) that discretion is conferred on Court to permit
cross-examination of witness by the party who calls it and it does not contain any condition or guidance,
which may govern the exercise of such discretion. But it is always expected that the court have to exercise
such discretion judiciously and properly in the interest of justice. A party will generally be not allowed to
cross-examine his own witness and declare the same to be hostile. Unless the court is satisfied that the
statement of witness exhibits an element of hostility or that he has realised form material statement of where
the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him
to get out the truth. There must be some material to show that the witness is not speaking the truth or has

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exhibited the element of hostility to the party for whom he is deposing before the witness can b e declared
hostile and the party examining the witness is allowed to cross-examine. Merely because the witness is
speaking the truth which may not suit the party on whose behalf he is deposing and the same is favourable
to other side the discretion to allow the party concerned to cross examine its own witness not be exercised.

This section allows a party, with the permission of the court to cross-examine his own witness in the same
way as the adverse party. Such cross-examination means that he can be asked:-

(a) Leading question under Section 146 of BSA,

(b) Question relating to his previous statement in writing under Section 148 of BSA, and
(c) Questions which tend to test his veracity, to discover who he is and what is his position if life or to
shake his credit under Section 149 of BSA.

The terms hostile, adverse, unfavourable witness are alien to BSA. Those are the terms of English Law. The
rule of permitting a party calling the witness to cross examine are relaxed under common law by evolving
the terms hostile witness and unfavourable witness. Under the common law the hostile witness is described
as one who is not desirous of telling the truth at the instance of the party telling him and unfavourable
witness is one called by the party to prove particular fact in issue. In India the right to cross examines the
witness by the party calling him is governed by provisions of BSA. Section 146(2) of BSA requires that the
leading questions cannot be put in examination in chief or re-examination without permission of the Court.
The Court can however permit leading questions as to matter which are introductory or undisputed or which
in its opinion already been satisfactorily proved. Section 157 of BSA authorises the Court in discretion to
permit the person who calls the witness to put any question to him which might be put in cross-examination.
The Court is under legal obligation to exercise the discretion in judicious manner. [Ganga Singh v. State of
Rajasthan, 2001 SC].

ADVERSE OR HOSTILE WITNESS:-A hostile witness is one who from the manner in which he gives
the evidence shows that he is not desirous of telling the truth to the court. A witness cannot be said to be
hostile whenever his testimony is such that it does not support the case of the party calling him or is not
accord with the evidence of other witnesses. Tulsi Ram Sahu v. R.C. Pal, 1953 Cal., and the inference of
the hostility of a witness would be drawn from the answer given by him and to some extent from the
demeanor.

VALUE OF THE EVIDENCE OF A HOSTILE WITNESS:-The fact that a witness is dealt with under
Section 157 of BSA, even when under that section he is cross-examined to discredit, in no way warrants a
direction to the jury that they are bound in law to place no reliance on his evidence or that the party who

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called and cross-examined him can take no advantage from any part of his evidence. The evidence of such a
witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of
the opposite party. The whole of the evidence so far as it affects both the parties favourably must go to the
jury for what it is worth.” It is not correct to say that when a witness is cross-examined by the party calling
him, his evidence cannot be believed in part and disbelieved in part but must be excluded from the
consideration altogether. The correct rule is that either side may rely upon his evidence and that the whole
of the evidence so far as it affects both parties favourably or unfavourable must be considered for what it is
worth. It is settled law that the evidence of a hostile witness cannot be discarded an it can used to
corroborate other reliable evidence if such reliable evidence exists on the record.

Balu Sonba Shinde v. State of Maharashtra, 2002, it was held by Supreme Court that the evidence of
hostile witness need not be rejected ispo facto on that account. The party may advantageous portion therein.
However Court has to be extremely cautious and circumspect in such acceptance.

IMPEACHING CREDIT OF WITNESS: SECTION 158 of BSA

The court relies upon the evidence given by the witness to arrive at the truth or falsity of the claim or charge
in the litigation. Sometimes, the witness called by the party turns hostile and it is not safe to rely upon such
evidence. Then, the parties may be provided with an opportunity to give independent testimony by
impeaching the credit of witness.
This section enables the parties to give independent testimony as to the character of a witness in order to
indicate that he is unworthy of belief by the court. Its provisions apply to both criminal and civil cases.
Section 158 of the BSA, 2023 deals with “Impeaching credit of witness”. According to it: - The credit of a
witness may be impeached in the following ways by the adverse party or with the consent of the court, by
the party who calls him:-

1. By the evidence of persons who testify that they, from their knowledge of the witness, believe him to
be unworthy of credit;
2. By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any
other corrupt inducement to give his evidence;
3. By proof of former statement inconsistent with any part of his evidence which is liable to be
contradicted.
Explanation: - A witness declaring another witness to be unworthy of credit may not, upon his
examination–in–Chief, give reasons for his belief, but he may be asked his reasons in cross-examination,
and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be
charged with giving false evidence.

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Illustration:- A is indicted for the murder of B. C says that B, when dying, declared that A had given B the
wound of which died. Evidence is offered to show that, on a previous occasion, C said that the wound was
not given by A or in his presence. The evidence is admissible.

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