With increasing trend of appointment of Court
commissioners to overlook witness examinations, lawyers are required to be more
vigilant during depositions. Earlier, if any question beyond the scope of
re-examination was put to a witness, the Judge would generally not permit such
question to be asked, notwithstanding a lack of objection from the opposing
party. While reading a commissioner’s report, such a fact may not strike the
Judge at all. If an objection to the question by the opposing party has not
reflected in the report, rejecting such portion of the deposition may slip the
Judge’s mind entirely and that portion of the evidence may remain on record
till the proceedings are disposed of. Thus, it is essential to properly
understand the scope of re-examination of witness.
The purpose of re-examination is to reconcile apparent
inconsistencies, if any, between statements in the examination-in-chief and
cross-examination or to elucidate any statement accidentally made in
cross-examination or to remove any vagueness or uncertainty in the witness’
statements or any suspicions cast on such statements during cross-examination. If
the party who called the witness feels that an explanation is necessary for any
statements made during the course of cross-examination, such party is free to
put questions in re-examination to get such clarifications as may be required. It
is pertinent to note that, where there is no such vagueness or where no such explanation
required, any questions asked during re-examination with the sole purpose of allowing
the witness an opportunity to undo the effect of any statements made in examination-in-chief
and cross-examination should never be permitted.[1]
Section 138 of the Indian Evidence Act, 1872 states that re-examination
of witnesses “shall be directed to the explanation of matters referred to in
cross- examination; and, if new matter is, by permission of the Court,
introduced in re- examination, the adverse party may further cross- examine
upon that matter.”
Thus, re-examination cannot be used as a tool to introduce any new
evidence or facts, and it must be restricted only to fill lacunae in earlier
depositions. Interestingly, even if inadmissible matters are introduced in
cross-examination, the right to re-examine on those matters remain.
If in the course of cross-examination, the witness admits that earlier
statements of his were false, he should be questioned in re-examination (by the
prosecution or, in any case, by the Court) why he made such false statement. The
mere fact that the earlier statement is admitted to be false is no ground for
rejecting it completely, if on other grounds the Court concludes that it is in
substance true.[2]
In Jai Shree Yadav v. State of U.P., [AIR 2004 SC
4443] the Hon'ble Supreme Court held that when a witness is subjected to
lengthy arduous cross-examination over a lengthy period time there is always a
possibility of the witnesses committing mistakes which can be termed as
omissions, improvements and contradictions therefore those infirmities will
have to be appreciated in the background of ground realities which makes the
witness confused because of the filibustering tactics of the cross-examining
counsel. (Para 20) [Note: It is
necessary to note that in this case the witness was subject to nearly 217
questions over a period of 14 months!]
very good post thanks a lot
ReplyDeleteShivshakti Technologies