According to Section 137 of the Indian Evidence Act, 1872 the examination of a witness, by the party who calls him, shall be called his examination-in-chief. This is also called an examination. Every witness is first examined by the party who has called him, this process called his examination-in-chief. Section 138 provides witnesses shall be first examined by the examination-in-chief then if the adverse party so desires cross-examined then if the party calling him so desires can be re-examined.
Purpose of examination-in-chief:
The object/purpose behind conducting the examination-in-chief is to form the witness depose to what he has been called by the party calling him to prove. In other words, the thing of his examination is to urge him from the witness all material facts within his knowledge concerning the party’s case. It must be confined to the relevant fact and no leading questions are often asked. Except with the permission of the court. The court shall permit leading inquiries to be asked on matters which are introductory or undisputed, or which have in its opinion, been already sufficiently proved.
According to Section 137, para 2 of the Indian Evidence Act, 1872, the examination of a witness by the adverse party shall be called his cross-examination. Cross-examination considered a most powerful weapon. According to Philip Wendell, “Cross-Examination is a double-edged weapon, if you recognize the way to wield, it helps to chop enemy’s neck otherwise, it cuts own hands”. It should be remembered that the witnesses must speak to facts and to not opinions inference or beliefs. A witness could also be cross-examined on previous statements made by him in writing or reduced into writing. Leading questions may be asked.
The object of cross-examination is to a 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 cross-examination of the party. Sukhawant Singh v. State of U.P. In this case, the Supreme Court has held that a witness cannot be thrown open to cross-examination unless he is first examined-in-chief. Where the prosecution didn’t examine its witness and offered him to be cross-examined, it had been held that this amounted to abandoning one’s witness, there can’t be any cross-examination without the inspiration of examination in chief.
According to Section 137, para 3 of the India evidence Act 1827, the examination of a witness, after the cross-examination by the party who called him, shall be called his re-examination. The object of re-examination is to afford to the party calling a witness a chance of filing in lacuna or explaining the consistencies which the cross-examination has observed. In the examination-in-chief of the witness. It is accordingly confined to the explanation of matter referred to in cross-examination. It shouldn’t introduce any new matter unless the court permits; and if such permission is given, the adverse party may further cross-question upon that matter.
Facts and issues of the case:
The Hon’ble bench of Bombay high court headed by Justice Vibha Kankanwadi said that in certain cases the contents of examination cannot be limited by the examination in chief. The court also said that it may go beyond the purpose of cross-examination to testify the veracity of the witness. The present petitioner’s original accused persons are facing a charge under Section 302 read with 34 of Indian Penal Code in the said case.
The prosecution has examined Dr Kailash Zine who had conducted the autopsy. His examination-in-chief is complete and he is under cross-examination. It is contended in the petition that, the post mortem report is exhibited and the diagram of injuries sketched and appended to the report are at Exhibit 217.
Dr Kailash Zine had brought file of treatment papers of the deceased and produced it before the Court before the commencement of cross-examination of the said witness as those papers were required by the defence. It is stated that in post mortem report Exhibit 216 in column No.5 it is stated that the deceased was admitted to Government Medical College and Hospital, Aurangabad in an unconscious state at about 12.45 hours on 14-03- 2015 and during treatment he died on the same day around 16.05 hours in the hospital.
It is stated that the said fact is contrary to the file of treatment on record, and therefore, the learned defence advocate wanted to cross-examine the said witness in respect of those papers.
When the questions were asked, the learned Special Public prosecutor had taken objection that the said witness has no knowledge about the contents of the document and he cannot depose in respect of those documents.
The learned Judge has upheld the said objection and has not allowed the witness to answer certain questions. The learned Judge had surprisingly endorsed the scope of the evidence of the witness that it is restricted only to post mortem report Exhibit 216, diagram Exhibit 217, and death certificate Exhibit 218.
It is stated that the defence had not put any questions regarding treatment given to the deceased, and therefore, the learned Judge ought not to have restricted and prevented the defence from putting further questions in respect of the documents. Though the Judge may conclude that, the question is not relevant at that stage, however, possibility cannot be ruled out that the said question may become relevant at the later stage.
Based on the decision in Bipin Shantilal Panchal vs. State of Gujrat And Another, it was requested to the Court that, all the questions be taken and subject to objections the answers be taken and then the relevancy or admissibility of the questions maybe later on considered. Per contra, the learned Additional Public Prosecutor submitted that the witness had specifically stated that, he had not given treatment to the deceased then questions in respect of contents of the document could not have been put to the said witness.
The papers were produced by the said witness on the request of the learned advocate for the defence. Therefore, the learned Judge was justified in upholding the objection raised by the learned Special Public Prosecutor. Learned Advocate for the accused persons cannot ask any question which is not relevant.
The Court has the power to control the cross-examination. This Court is not agreeing with the submission by learned Advocate for petitioners that, the Court cannot control the cross-examination or he has free hand at the time of cross-examining the witness of the prosecution, but then agree to the submission that the cross-examination need not be restricted to what the witness has stated in his examination-in-chief.
A balance has to be struck here while issuing directions to the learned Additional Sessions Judge that he has to decide the relevancy of the question which he may get explained from the learned advocate for the accused orally and then allow him to put the said question to the witness.
Edited by Vartika Gajendra Singh
Approved & Published – Sakshi Raje
Sukhawant Singh v. State of U.P AIR 1995 SC 1601, Bipin Shantilal Panchal v. State of Gujrat And Another