What are the examination-in-chief, cross-examination, and re-examination? What are their objects? What questions can be put to a witness in cross-examination?

Question: What are the examination-in-chief, cross-examination, and re-examination? What are their objects? What questions can be put to a witness in cross-examination? [M.P.C.J. 1996, 2013, U.P.C.J. 1987, 2013]

Find the answer to the mains question only on Legal Bites. [What are the examination-in-chief, cross-examination, and re-examination? What are their objects? What questions can be put to a witness in cross-examination?]

Answer

Section 137 talks about examination-in-chief, cross-examination and re-examination.

1. It says that “Examination-in-chief- The examination of a witness by the party who calls him shall be called his examination-in-chief.
2. Cross-examination: The examination of a witness by the adverse party shall be called his cross-examination.
3. Re-examination: the examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.”

Section 138 of the Indian Evidence Act further provides the order of examination of a witness. It says that “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.”

Examination in Chief:

When a witness appears before the court, he is given an oath or affirmation; his name and address is taken down. After the witness has been sworn the oath as required under Section 5 of the Indian oath Act, the party who calls, then the party who calls him, examine him to elicit the truth and to prove the facts which bear upon the issue in favour of that party. This is called ‘examination-in-chief’. It may be noted that the witness can give evidence of fact only and no evidence of the law.

The purpose of examination-in-chief is to take such testimony for which he is called by party and the object of examination in chief is to obtain testimony in support of a version favourable to the party calling him. In an examination in chief, the witness should be asked about relevant facts showing any special means of knowledge, opportunities of observations etc.

A witness can give evidence of fact only and no evidence of the law. During the examination in chief, as provided in Section 142 of the Act, leading questions must not, if objected by the adverse party, be asked except with the permission of the Court.

Cross-Examination:

Cross-examination of a witness is the right of an adverse party. The testimony of a witness is not complete unless it is subjected to a test of cross-examination by the adverse party. After the party calling a witness has finished the examination-in-chief, the opposite party has a right to cross-examine the witness under Section 154 of the Act, the adverse party will cross-examine the witness.

The scope of cross-examination is wider than examination-in-chief because examination-in-chief is confined only to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

The purpose of ‘cross-examination’ is to expose the truth about the testimony of the witness. The object of the cross-examination is three-fold:

1. First, to elicit from an adverse witness something in your favour;
2. second, to destroy or weaken the force of what the witness has said against you, and
3. Third, to show from the present attitude of the witness or from his past experience that he is unworthy of belief in whole or in part.

The lawyer seeks to discover the flaws, if any, in the testimony of the witness and also to unmask perjury by the method of cross-examination. An opportunity to cross-examine a witness must be provided to the party. A tenant who wanted to cross-examine the old landlady was allowed to do so if he could arrange for travel [Pyarelal v. Devi Shanker AIR 1994 M.P. 115].

Re-examination:

The party who called the witness may if he likes and if it is necessary, may request the court to grant permission to re-examination of witnesses. But the re-examination shall be directed to the Explanation of the matter referred to in cross-examination.

The purpose of re-examination is the explanation or clarification of the expressions used by the witness in cross-examination by asking questions as may be proper to draw forth an Explanation or meaning of the expression used by witnesses in cross-examination if they are doubtful. Where the prosecution failed to submit any clarification through re-examination, the benefit of the doubt will go to defence. [Ramsewak v. State ofM.P. (2004) 11 SCC 259]

Questions that can be put to a witness in cross-examination:

Generally speaking, it is true that Section 138 of the Act, does provide wide scope for cross-examination. The questions asked to witness in cross-examination need not be confined to what is spoken to in the examination-in-chief. The opening part of the second half of Section 138 clearly provides that examination and cross-examination must relate to relevant facts.

But the cross-examination need not be confined to the facts to which the witness had stated in his examination-in-chief. Therefore, the question in cross-examination also must be relevant to the fact which was required to be proved by that witness. Any deviation in respect of the relevancy of facts was permissible only to attack the reliability, character and such other things concerning the witness.

All the questions which are asked to challenge the evidence-in-chief are permissible. There is no provision that says that cross-examination should be confined to what is volunteered by witnesses and cannot be directed to challenge or clarify the answers given in cross-examination. [P. v. P., AIR 1982 Bom 498]

That was why the wider scope was given while cross-examining a witness, in order to demonstrate the credibility of the witness or otherwise. Such wider scope conferred for purposes of cross-examination cannot be used to establish the case of the defendant which he was required to independently establish by producing a relevant documentary or oral evidence to discharge the burden which was cast on him.

Following questions may be asked to a witness in his cross-examination by an adverse party:

1. Any relevant question which needs not to be confined to fact deposed to in examination-in-chief (Section 138).
2. Any leading question (Section 142 and 143).
3. Any question relating to contents of a document by asking for production of such document, if has not been produced earlier.
4. Any question relating to the relevant previously written statement of such witness With a view to contradict the witness by such previous statement by drawing his attention to such statement, before such writing can be proved ( Section 145).
5. Any question to test his veracity.
6. Any question to discover who he is and what is his position in life (Section 146).
7. Any question to shake his credit by injuring his characters although the answer to such question might tend directly or indirectly to criminate him or might expose him to penalty or forfeiture (Section 146).

From aforesaid kinds of questions open to be put before a witness, it is clear that cross-examination is one of the most important processes for the elucidation of facts of a case and reasonable latitude should be allowed, but the Judge has always discretion as to how far it may go or how long it may continue.

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