INTRODUCTION:
In any case, be it a civil or criminal, evidence and facts are not sufficient to establish the case of a party but witnesses also play a crucial role in proving or disproving those facts. In the trial of any case witnesses are sought to discover the truth and back the evidence produced by the party. The process of discovering truth and important details from a witness is in legal terms called examination. This examination of witnesses is done at the trial stage and is generally divided into three stages namely- Examination-in-chief or Chief Examination, Cross-Examination and Re-Examination. This blog will define and explain all three forms of examination, their importance and the most crucial key differences between all three of the examinations.
EXAMINATION-IN-CHIEF
Section 142(1) of the Bhartiya Sakshya Adhiniyam 2023 defines the examination-in-chief as, the examination of the witnesses by the party who calls them, as abovementioned, it is the first stage in the process of examination of witness. Herein, the party who called the witness is allowed by the judge/magistrate to question the witness to give testimony regarding the facts which supports the party’s evidence and factual presentation. The testimony of witness forms the factual foundation of the party’s case and is tested by the opposite party in cross examination. The party is allowed to question the witness but it shall not be a leading question according to section 146(2), which is generally not permitted in examination-in-chief except with the permission of the court or in matters where some facts are undisputed or already proved, which is defined under section 146 of the BSA. For example, the party can ask “where was B when you saw the dead body” and not “You saw B stabbing A, didn’t you?”, such questions are not allowed in chief examination, as the main purpose of this stage is to lay down the factual base of the case from witness’s point of view which shall match the party’s factual representation in the case.
Also Read – Section 4 of the Bharatiya Sakshya Adhiniyam and the Doctrine of Res Gestae
CROSS-EXAMINATION:
Section 142(2) defines cross-examination as the examination of a witness by the adverse party. The role of witness does not end with giving testimony in the chief-examination but the witness also has to withstand the examination done by opposite party to defend its own case, which is done in the second stage of cross-examination. The primary objective of cross-examination is to test the veracity, credibility and truthfulness of the statement given by the witness in the chief-examination, by doing so an equal and fair opportunity is given to the adverse party to establish its own case by challenging the testimony. The Supreme Court in Mohd. Hussain v. State government of NCT of Delhi, while observing the purpose of cross-examination, also held that cross-examination is also a right of the party in ensuring fair trial. The cross-examination is a crucial stage, which clarifies that mere testimony by witness as per the party who calls him, does not automatically establish his case but he also has to withstand the second stage where his very statements are tested by the counsel for adverse party. Unlike, the chief-examination, the party is allowed to ask leading questions, the rationale behind the admission of leading questions is that the party already established the facts in the chief-examination and is merely challenged, so for example, the witness already answered the question of “where was B when you saw the dead body?”, the opposite counsel can very well challenge the testimony by asking “you did not personally witness B acting suspicious around A, did you?”. Further, according to section 149 of the BSA, the questions in cross-examination can to be asked to test veracity or truthfulness of the statement made by witnesses and in sections 151 to154 of BSA, it’s mentioned that cross-examination is used to ask question related to the facts of the case and not any scandalous questions, doing so would require court’s permission. The Supreme Court in Balu Sudam Khalde v. State of Maharashtra, observed that purpose of cross examination is to find the truth or establish falsehood of the statement of the witness but it must be ensured that it is not made a means of harassment or causing humiliation to the witness.
Also Read – Section 63 of the Bharatiya Sakshya Adhiniyam, 2023:
RE-EXAMINATION:
In the third stage after the cross-examination, the counsel who called the witness might wish to clarify ambiguities created during the cross-examination, this is where re-examination comes into picture. Section 142 BSA defines re-examination as the examination of witness subsequent to the cross-examination by the party who called him. The re-examination part is discretionary and depends on case-to-case basis. The primary objective of re-examination is not to introduce an entirely new case, but to explain or clarify matters that arose during the cross-examination, though new facts may be allowed with the court’s permission in special cases but if it is allowed then the adverse party is also allowed once again to cross-examine those new facts according to section 143 of BSA, to ensure there is procedural fairness and just because one party brought the witness, he is not give upper hand in the administration of justice. Unlike cross-examination, leading questions are not permitted unless the court permits them, for example, the witness gave testimony during the chief-examination that “I saw B around 8 P.M.” and cross-examination creates confusion regarding timing of occurrence then the counsel in re-examination can ask him “whether it was before or after the murder?”, to clarify the ambiguities. So, the re-examination is mainly related to matters raised while cross-examining the witness and not a new introduction of facts which can alter the already established position of the party during the chief-examination.
KEY DIFFERENCES BETWEEN THE THREE STAGES OF EXAMINATION:
| Basis | Chief – examination | Cross-examination | Re-examination |
| Defined Under | Section 142(1) BSA | Section 142(2) BSA | Section 142(3) BSA |
| Conducted by | Party who called witness | The opposite party | Party who called the witness |
| stage | First stage | Second stage | Third stage |
| Leading questions | Cannot be asked unless court permits | Can be asked | Cannot be asked unless court permits |
| Purpose | To place witness’s version of facts before the court | To test the truthfulness of the statement made in the first stage. | To clarify the ambiguities arose during the second stage. |
| Scope | Fact’s supporting party’s case | Matters challenging the position of the party who called the witness. | Matters arising during the re-examination. |
| Nature | Essential stage when a witness is called | Right of the adverse party, if it wishes to challenge the statements made during the first stage | Optional, depends on the discretion of the party and whether case requires clarification for matters arose during second stage. |
Also Read – Free Bharatiya Sakshya Adhiniyam, 2023 (BSA) MCQ Quiz: Sections 1, 42, 54 & 55 with Answers
CONCLUSION:
The three-stages of examination of witness under the legal system forms a crucial part in the smoother administration and delivery of justice. The three-stages differ from each other in the way they serve the purpose and the nature of their role in the entire examination process. Together these three stages ensure a fair trial and help in discovering truth.
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