The last branch of the Act deals with the Examination of witness and covers -

• the manner in which a witness is to be examined by the party who calls him,

• what kind of question can be put to him and

• what kind of questions cannot be put to him and

• how the opposite party can test the veracity of deposition and

• how his creditworthiness be impeached are discussed in this part of law of evidence.

The order in which witnesses are produced and examined should be regulated by law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations:

1. It is propose to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Section 32. (Dealing with cases in which statement of relevant fact by a person who is dead etc.).The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

2. If it is proposed to prove, by a copy, the contents of a document said to be lost,the fact that the original is lost must be proved by the person proposing to produce a copy, before the copy is produced.

3. A is accused of receiving a stolen property knowing it to be stolen. It is proposed to prove that he denied the possession of the property.The relevancy of the denial depends on the identity of the property. The Court may in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

4. It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D), which must be shown to exist before fact (A) can be regarded as the cause or effect of the fact in issue. The Court may direct A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

• Examination-in-chief is the examination of a witness by the party who calls him.

• cross-examination is the examination of the witness by the adverse party.

• Re-examination is the examination of the witness subsequent to the cross-examination by the party who called him.

The evidence of witnesses shall be taken in open Court in the presence and under the personal direction and superintendence of the Judge

The examination of a witness by the party who calls him shall be called his Examination-in-Chief. It must relate to relevant facts. No leading questions can be asked. The object of this examination is to get from the witness all material facts within his knowledge relating to the party's case. It is the duty of the counsel to bring out clearly and in proper chronological order every relevant fact in support of his client's case to which the witness can depose. The statements made in examination-in-chief lose much credibility and weight unless they are put into the crucible of cross-examination and emerge unscathed from the rest

The examination of a witness by the adverse party shall be called his cross-examination. The purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination
[Maganlal Vs. King Emperor AIR 1946 Nagpur 126].

The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining party. Cross-examination, though a very powerful, is also a very dangerous engine. It is a double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed. To wield it to advantage requires a great practice and natural tact. It should be keep in mind that the essence of cross-examination is, that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause, or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. But if the adverse party has had liberty to cross-examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-examined.

When witness not to be Cross Examined: -

1. A witness summoned merely to produce a document;

2. A witness sworn by mistake

3. A witness whose examination has been stopped by the judge before any material question has been put is not liable to cross-examination;

4. A witness giving replies in answer to questions by the Court can only be cross-examined as to credit;

5. A witness, who has given no evidence in chief, may not be cross-examined as to credit;

6. The Court may disallow cross-examination used simply to oppress and not for the purpose of justice;

7. Witnesses to character, though liable to be, are in fact rarely cross-examined.

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.

The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matters, by permission of the Court, introduced in re-examination, the adverse party may further cross-examination upon that matter. The right to re-examination a witness arises only after the conclusion of cross-examination and it shall be directed to the explanation of any part of his evidence given during cross-examination, which is capable of being construed unfavorably to his own side. The object is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination.

The examination of witnesses is viva voce. It is always in the form of questions and answers. Where a question is objected to and yet allowed by the Court to be put, the question and it answers are taken down verbatim. At the end of the deposition, it is read out to the witness and signed by the Presiding Officer.

Any question suggesting the answer, which the person putting it wishes or expects to receive, is called a leading question. It is a question framed in such a manner that it throws a hint as to, or suggests directly or indirectly, the answer, which the examiner desires to elicit from the witness. For example when a witness called to testify to an alleged assault on "A" by "B" is asked " Did you see "B" take a stick and strike "A"

A question that calls for a simple "yes" or "No" answer is not leading. It is a question assuming expressly or impliedly a material fact not testified to, which points out the desired answer to enable the witness to affirm such fact.

Leading question must not, if objected by the adverse party, be asked by examination-in-chief, or in re-examination, except with the permission of the Court. The reason for exclusion of leading questions by examination-in-chief or re-examination is simple. A witness has a natural or sometimes unconscious bias in favour of the party calling and he will therefore be too ready to say "Yes" or "No", as soon as he realises from the form of the question that the one or the other answer is desired from him.

Another reason is that the party calling a witness has an advantage over his adversary, in knowing beforehand what the witness will prove, or at least is expected to prove and that consequently, if he was allowed to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the witness as would be favourable to his side or even put a false gloss upon the whole. The objection in that regard has to be taken at the proper time. If the objection is not taken at the time, the answer will be taken down in the judge's notes and it will be too late to object to the evidence afterwards on the scope of its having been elicited by leading questions.

The court shall permit leading questions as to matters which are introductory of undisputed, or which have, in its opinion, been already sufficiently proved. As the objection to leading questions is not that they are absolutely illegal, but only that they are unfair, the court may in its discretion allow leading questions to be put in proper cases.

Exceptions to the Rule: - The following are exceptions to the general rule that leading question shall not be asked in examination-in-chief: -

1. Introductory or Undisputed Matter The Court shall permit leading questions as to mattes which are introductory or undisputed or which have been sufficiently proved.

2. Identification The attention of a witness may be directly pointed to some persons or things, for the purpose of identifying them. This form of question is obviously unsatisfactory and the testimony does not carry much weight

3. Contradiction A witness may be asked leading questions in order to contradict statements made by another witness.

4. Helping MemoryThe rule will be relaxed where the inability of a witness to answer questions put in the regular way obviously arises from the defective memory. The Court will, too, sometimes allow a pointed or leading questions to be put to a witness of tender years whose attention cannot otherwise be called to the matter under investigation.

5. Hostile witness If a witness called by a party appears to be hostile or interested for the other party and exhibits a desire to suppress the truth, the court may in its discretion allow leading questions to be put, i.e. allow him to be cross-examined.

6. Complicated Matter The rule will be relaxed, where the inability of a witness to answer question put in the regular way arises from the complicated nature of the matter as to which he is interrogated.