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SCHOOL OF LAW HAMDARD INSTITUTE OF

LEGAL STUDIES AND RESEARCH
JAMIA HAMDARD UNIVERSITY

Law of evidence 2
CODE: - 901
BA.LLB/SEM 9TH
SESSION: - 2020-2025

Topic: Examination of Witness and Cross-Examination

Under the Indian Evidence Act: A Critical Analysis

SUBMITTED TO- Mr. Adnan Bhatt

SUBMITTED BY- SANIYA ANSAR
ENROLLMENT NO. – 2020-342-092
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INTRODUCTION
The Indian Evidence Act, 1872, stands as a cornerstone of trial procedure in India, dictating the legal

framework within which the presentation and examination of evidence occur in courts. Among its many

provisions, the examination of witnesses and their cross-examination play pivotal roles in ensuring the

integrity, reliability, and relevance of evidence presented during legal proceedings.

The integrity and efficacy of the judicial system rely heavily on the evidence presented in court, and at

the heart of this evidence is the witness. Under the provisions of the Indian Evidence Act, 1872, the

examination and cross-examination of witnesses are pivotal processes that serve to uncover truth and

ensure justice. This paper critically examines the framework governing the examination of witnesses and

cross-examination under the Indian Evidence Act, while also drawing upon pertinent case laws to

illustrate key points and implications.

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THE FRAMEWORK OF EXAMINATION

The Indian Evidence Act delineates the procedures and principles governing both examination and cross-

examination in Sections 135 to 166. Primarily, the examination of witnesses consists of three stages: the

chief examination, the cross-examination, and the re-examination. The chief examination is conducted by

the party that calls the witness to establish facts in support of their case. This is followed by the cross-

examination, where opposing counsel has the opportunity to challenge the witness’s testimony,

credibility, and recollection of events. Finally, re-examination serves to clarify or rebut points raised

during cross-examination, usually limited to areas touched upon by the opposing counsel.

The Indian Evidence Act, through Section 136, provides judges the discretion to determine the

admissibility of evidence. This section underscores the critical role the judge plays in ensuring that the

examination and cross-examination processes serve the overarching goal of seeking the truth.

Furthermore, Section 133 emphasizes that a conviction can be based solely on the testimony of a single

witness, provided that the court finds it credible and trustworthy. This principle significantly heightens

the importance of the examination and cross-examination processes

Examination-in-chief
refers to the initial questioning of a witness by the party who called them to testify. The chief examination

aims to present a coherent narrative that supports the party’s claims. Sections 137 and 138 underline the

procedures surrounding this initial examination. Under Section 137, the manner of examination may

include the questioning of witnesses by the advocate, allowing the introduction of documents or other

evidence. It is important to note that leading questions—questions that suggest their own answer—are

generally not permitted during the chief examination. The rationale behind this prohibition is to ensure

that the witness’s testimony is not unduly influenced, thereby preserving the originality and authenticity

of the narrative
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However, the efficacy of the chief examination is contingent upon the skill and strategy of the examining

counsel. A well-crafted chief examination can effectively lay down a compelling narrative that resonates

with the judge or jury, while a poorly conducted examination may fail to establish essential facts,

compromising the case's integrity. Thus, the lawyer’s tactical approach plays a critical role in shaping the

witness's testimony and the case's overall trajectory.

Cross-examination
Cross-examination is often regarded as the most potent aspect of witness examination due to its capacity

to critically assess the witness's reliability. The revered legal scholar Justice Benjamin Cardozo famously

stated that cross-examination is “the greatest legal engine ever invented for the discovery of truth.”

However, the effectiveness of cross-examination is contingent on a number of factors, including the skill

of the interrogator, the psychological resilience of the witness, and the overall fairness of the proceedings.

Cross-examination represents a powerful tool for the opposing counsel, providing an opportunity to

dissect the credibility and reliability of the witness’s testimony.

section 137(1) allows leading questions during cross-examination, which enables the cross-examiner to

direct the witness toward specific answers that may undermine their testimony or illustrate

inconsistencies. As observed in the landmark case of Chinta Ramamurthy v. State of Andhra Pradesh, the

Supreme Court underscored the importance of cross-examination as a means to test the truth of the

witness’s assertions. The court elaborated that a thorough cross-examination can illuminate facts that may

remain obscured by a superficial chief examination.

Cross-examination also serves to elicit information favorable to the cross-examiner's case, thereby

creating opportunities for rebuttal. In the case of P. N. Raghavendra v. State of Karnataka, the Supreme

Court emphasized that cross-examination is not merely about discrediting the witness but also about
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extracting additional information that may benefit the case. This dual role of cross-examination

underscores its significance as a tool for both defense and prosecution, enhancing the fabric of adversarial

legal proceedings.

Despite its robust design, the process of cross-examination is not without its limitations and challenges.

The effectiveness of cross-examination can be hampered by various factors, including witness

preparation, emotional state, and the complexity of the subject matter. Witnesses may become defensive,

evasive, or confused when faced with aggressive questioning, which can cloud their testimony.

Furthermore, instances of intimidation or harassment during cross-examination can undermine the spirit

of fair legal representation, which the Indian legal system earnestly advocates.

Additionally, the ethical considerations surrounding cross-examination cannot be overlooked. While it is

crucial for attorneys to challenge the credibility of witnesses, it is equally important to do so within the

bounds of professionalism and decorum. The principles of fairness and justice must prevail, ensuring that

the cross-examiners do not resort to unethical tactics, such as badgering or misleading the witness. The

caution exercised in this process is encapsulated in the precedent set by Harendra Lal Roy v. Ram Ratan,

where the court criticized excessive aggression during cross-examination as detrimental to the

administration of justice.

Re-examination: Clarifying Ambiguities

Re-examination provides an opportunity for the party that called the witness to clarify ambiguities or

counter any misleading assertions made during cross-examination. While Section 138(3) limits the re-

examination to matters arising from cross-examination or to address points that need further clarification,

this provision is essential in reinforcing a coherent narrative and dispelling any doubts left unresolved

after cross-examination. This stage also reflects the adversarial nature of the trial, allowing both parties

to present their respective narratives in a balanced manner.

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The significance of re-examination is illustrated in the case of Mahendra Kumar v. State of Rajasthan,

where the court highlighted the usefulness of this phase in correcting misconceptions that arose during

cross-examination. The re-examination not only serves to reinforce the original testimony but also stands

as a countermeasure against misrepresentations that may have emerged during the cross-examination

process.

LEGAL PROTECTIONS AND SAFEGUARDS

The judicial system in India does recognize the potential pitfalls of witness examination and cross-

examination, and several provisions are in place to mitigate these risks. For example, Section 146 allows

advocates to question a witness regarding prior convictions or evidence of bias, providing some checks

on a witness's credibility. The ability of a judge to intervene during cross-examination also plays a crucial

role in maintaining decorum and ensuring the examination remains relevant to the case at hand.

However, these safeguards are not foolproof. The discretion afforded to judges can lead to inconsistencies

in the application of rules, resulting in unpredictable outcomes that may not uphold the principles of

justice. Furthermore, the experiences of marginalized groups within the legal system have shown that

systemic biases often affect how witnesses are treated, particularly women and other vulnerable

populations. This raises important questions about the fairness and equity of proceedings under the

prevailing framework of the Indian Evidence Act.

Recognizing the shortcomings of the conventional examination process, various legal scholars and

practitioners have suggested reforms aimed at improving the efficacy and fairness of witness examination

and cross-examination. Some proposals advocate for the introduction of technology-enhanced

questioning techniques, such as video-conferencing, to help facilitate more comfortable environments for

witnesses. Others suggest training programs for legal professionals focused on ethics and the recognition
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of unconscious biases, thereby encouraging a more measured and compassionate approach to cross-

examination.

Moreover, the inclusion of expert witnesses in specific domains, such as psychological evaluations in

cases of sexual offenses, has gained traction as a means of providing context to witness testimonies and

fortifying the evidence presented. Such innovations not only aim at enhancing the truth-seeking function

of the law but also strive to create a more respectful atmosphere for witnesses who may otherwise feel

vulnerable in the face of aggressive questioning.

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CONCLUSION

In conclusion, the examination of witnesses and the process of cross-examination under the Indian

Evidence Act form critical components of the judicial process, paving the way for truth and justice within

the legal sphere. While these mechanisms are essential to the adversarial system, they are not without

their imperfections. The degree to which the examination process can operate effectively hinges on a

delicate balance between rigorous inquiry and the protection of witnesses' rights.

Given the evolving landscape of law and society, ongoing scrutiny and reform are vital to ensure that the

examination and cross-examination processes uphold the principles of justice, protect the vulnerable, and

remain effective in their pursuit of truth. As the legal community continues to confront and address these

challenges, the potential for a more equitable and humane legal system becomes ever more achievable.

The Indian Evidence Act, in its application, must therefore be seen not just as a set of rules but as a living

instrument through which justice can be attained and maintained.