Examination-in-Chief
What is Examination–in–Chief?
Usually, a witness is first put to what is known as “examination-in-chief”, where the advocate questions his own witness, on oath, under trial, to prove his legal argument. It is the starting point of litigation, for adducing evidence from witnesses in a court of law. The purpose of the examination-in-chief is to elicit facts that are favourable to the party conducting the examination. In adversarial systems like India, it is a tool for extracting truth from the facts, so that the advocate can present all the relevant evidence as accurately and logically as possible.
Official definitions of examination-in-chief
Section 137 of the Indian Evidence Act, 1872, (IEA) and Section 142 of the Bharatiya Sakshya Adhiniyam, 2023, define Examination-in-chief as – “The examination of a witness by the party who calls him shall be called his examination-in-chief.” Along with this, they also define Cross-examination and Re-examination.
Black’s Law Dictionary defines it as “the first examination of a witness by the party who produces him.”
Cambridge Business English Dictionary defines it as – “A court process in which a lawyer asks their first questions to their own witness, in order to begin proving their legal argument.”
Rules followed during examination-in-chief
Order of Examination
The order for the examination of witnesses is mentioned in Section 138 of the Indian Evidence Act ("IEA") and Section 143 of Bharatiya Sakshya Adhiniyam ("BSA") – examination-in-chief, followed by cross-examination, and lastly, a re-examination. The Supreme Court of India has held that tendering a witness for cross-examination without examination-in-chief is not warranted by law.[1] Tendering the witness only for cross-examination, points to the failure of the prosecution to examine the witness at the trial. The Court also held that non-examination seriously affects the credibility of the case of the prosecution.[2]
Leading Questions
Section 142 of IEA and Section 146 of the BSA states that leading questions must not be asked in an examination-in-chief if they are objected to by the adverse party, except if permitted by the Court. Further, it mentions that Courts shall permit leading questions in matters which are either undisputed or which in the opinion of the Court, have been already sufficiently proved. The objective behind precluding leading questions is to ensure that the witness answers the truth and not what the counsel calling him wants to hear.
Examination should be on the same day
The Supreme Court has held that Examination-in-chief followed by cross-examination should be done on the same day or the following day. There should not be any ground for adjournment in recording the same for the prosecution witness or as the case maybe.
Importance of Examination-in-Chief
The Patna High Court has held that the evidence given by a witness in his examination-in-chief cannot be discarded merely because he could not be cross-examined.[3] The Judge held that, the weight of the evidence obtained would depend on the facts and circumstances of the case.
Affidavit of Examination-in-Chief
The Jammu and Kashmir High Court dismissed a civil writ petition which sought for quashing of a trial court’s order to file affidavits of witnesses.[4] It was held that the writ petition was a mere tactic to delay the course of trial, and that the petitioners had not raised the contention during the trial, when multiple interim orders were passed. The Court further referred to a previous case, where it was ruled that examination of witness has to be tendered by way of an affidavit in every case, irrespective of the case being appealable or non-appealable.[5]
Research that engages with Examination-in-Chief
Witness in the Criminal Justice Process: A study of Hostility and Problems associated with Witness[6]
This paper is a study on the issues and problems in India related to witnesses in certain criminal offences. It examines why witnesses turn hostile, the key problems faced by them while interacting with police, prosecution and court officials. It shows the hindrances and pressures faced by the witness which in turn influence their testimony during examination-in-chief and cross-examination. The witnesses are not given due consideration, nor are protected properly, and so the paper suggests reform measures in the same.
Evidence. Credibility of Witness. Right to Examination of pre-Trial Statements[7]
This paper explains certain decisions by USA courts, regarding the relevancy of documents, and statements made by witnesses prior to the trial, and whether these can be examined during trial. In a specific case discussed, the examination-in-chief of the witness, if believed, was held to be sufficient for conviction, but the counsel during cross-examination demanded privilege of inspecting her prior statements to be able to cross-examine her. The appellate court allowed for the same, and reversed the conviction given by the trial court judge, who had not allowed inspection of the statements.
- ↑ Tej Prakash v. The State of Haryana, 1996 SCC (7) 322.
- ↑ Sukhwant Singh v. State of Punjab, 1995 AIR 1380.
- ↑ Anamika Pranav v. Anil Kumar Choudhary, C. Misc. – 538/2018.
- ↑ Manorma Sharma v. Sahib Saran Khajuria, 2018 SCC OnLine J&K 640.
- ↑ Rasiklal Manickchand Dhariwal v. M.S.S. Food Products, 2012 (2) SCC 196.
- ↑ G.S Bajpai, Witness in the Criminal Justice Process: A study of Hostility and Problems associated with Witness, BPRD (2009),https://bprd.nic.in/uploads/pdf/201608240419044682521Report.pdf
- ↑ Evidence. Credibility of Witness. Right to Examination of Pre-Trial Statements, 45 Columbia Law Review, 461-465 (1945), https://www.jstor.org/stable/pdf/1118585.pdf?refreqid=fastly-default%3A7969553440269a869eb37e452a2192d8&ab_segments=&origin=&initiator=&acceptTC=1.
