Thursday, April 14, 2016

Scope of Re-examination under Indian Evidence Act

Witness cross re-examination to kill a mocking birdWith 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!]

[1] Sarkar, 17th Edn., Pg. 2745
[2] Ibid. at Pg. 2747 relying on Sushil v. R, 51 IC 449 : 6 OLJ 210

Indian Evidence Act, Witness Examination, Court procedures

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