Examination of Witness 2

EXAMINATION OF WITNESS
UNDER SECTION 135-166 OF INDIAN EVIDENCE

ACT 1872 Part III chapter x ,section 135-166 relating
to the examination of witness
Mr.PRAVEJ ALAM
ASSISTANT PROFESSOR
NIMS SCHOOL OF LAW
Introduction
The examination of witnesses is an integral part of a criminal trial.
Witness testimonies are one of the most reliable evidence because the
person giving the statements has personally witnessed the event
happen. Section 135–165 of the Evidence Act, 1872 deals with
examination and cross-examination of witnesses.
Admissibility of evidence
Under the Evidence Act, 1872 Section 5 states that evidence is
admissible only when it supports a relevant fact in issue. It is further
provided in Section 136 that the judge may ask the parties if the
evidence they have adduced deals with a relevant fact or not. For
evidence to be admissible in Court, the judge must be convinced that
the evidence is relevant and does help establish a relevant fact in
issue.
Examination Order
Witnesses are required to answer the relevant questions presented to
them. A question asked to a witness must be relevant to a fact in issue,
and must help establish the same. Their answers when recorded are
called testimonies of witnesses. This questioning of the witness and
recording their answers is called witness examination.
Order of Production and Examination of Witness (Section

135)
The order in which witness are produced and examined shall be

regulated by the 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.
Judge to decide as to admissibility of evidence
(Section 136)
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 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 the 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
acquire evidence to be given of the second fact before evidence is given of
the first fact.
Illustrations
(a) It is proposed to prove a statement about a relevant fact by a person
alleged to be dead, which statement is relevant under section 32. 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.
(b) 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 the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been

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
Examination of witness
Examination of a witness is asking the witness questions
regarding relevant facts in the case and recording the
statements of witnesses as evidence. There are three parts to
the examination of a witness and Section 138 of the Evidence
Act states that the witness must be examined in the
following order:
 First, the party that called the witness examines him, this process is
called examination-in-chief as mentioned under Section 137 of the
Indian Evidence Act.
 After the completion of the examination-in-chief, if the opposite party
wants to, they can take over the witness and cross-question him about
his previous answers. The opposite party may ask him any question
regarding all the relevant facts and not merely the facts discussed
during the examination-in-chief. This process has been described in
Section 137 of the act as cross-examination.
 If the party that called the witness sees the need to examine the witness
again after cross-examination, they may examine the witness one more
time. This has been laid down as re-examination in Section 137 of the
Indian Evidence Act, 1872.
Section 138 states that the re-examination must be directed by the Court
for explaining matters referred to in cross-examination. The section
further states that if any new fact or issue arises during re-examination,
the opposite party can further cross-examine the witness on that fact or
issue.
In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High
Court of Jammu and Kashmir that- cross-examination might not be
necessary if the witness testimony is prima facie unacceptable.
So, if no relevant facts are answered by the witness or there is no
credibility to his statements, his testimony can be rejected and there is no
need for cross-examination in that case.
The examination of a witness must be done specifically in the sequence
mentioned under Section 138. In the case of Sharadamma v. Renchamma
, it was held that examination-in-chief must be done before the cross-
examination. The opposite is neither possible nor permissible.
Leading Questions
While examining, cross-examining, or re-examining a witness, the
parties must refrain from asking leading questions. Leading questions
have been described in Section 141 of the Act as- any question that
suggests the answer which the person questioning expects to receive.
One party must object if the other party asks a leading question to the witness.
A leading question suggests the witness the answer, for example:
 “You saw Harry wearing a black robe, didn’t you?”

This question by itself suggests that Harry was wearing a black robe, this
question is leading the witness to reply with what the questioner wants.
 “What was Harry wearing?”
The answer to this question could be the same as the previous one, however, there
are no suggestions in the question. It is a simple question and not leading in any
way. These types of questions are permitted.
 This is because the witness must answer every question by himself as he is the one
who has witnessed the fact. If there is a suggestion in the question, the questioner
would be feeding responses to the witness.
Conclusion
The examination of witnesses is extremely necessary in any case, irrespective of
its civil or criminal nature, and both the procedural laws clarify the examination
of witnesses. Sections 135 to 166 of the Indian Evidence Act describe the
examination of witnesses, including crucial aspects such as, for example, who
may first interview the witnesses during the examination of the witnesses, what
are the relevant facts agreed during the examination of the witnesses, what
questions can be raised by the advocate during the cross-examination of the
witnesses, what questions cannot be as follows.

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EXAMINATION OF WITNESS

UNDER SECTION 135-166 OF INDIAN EVIDENCE

Order of Production and Examination of Witness (Section

The order in which witness are produced and examined shall be

If the fact proposed to be proved is one of which evidence is

(b) It is proposed to prove, by a copy, the contents of a document said

(c) A is accused of receiving stolen property knowing it to have been

A leading question suggests the witness the answer, for example:

 “You saw Harry wearing a black robe, didn’t you?”

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