Examination-in-chief, cross-examination and re-examination

1. Order of production and examination: section 140

Section 140 (old s.135): the order in which witnesses are produced and examined is regulated by the law and practice of civil and criminal procedure, and, where there is none, by the discretion of the Court. In a civil suit the party with the right to begin (usually the plaintiff, Order XVIII CPC) leads evidence first. In a criminal trial the prosecution examines its witnesses first and the accused then enters on his defence (for example, sections 254 to 256 BNSS in a sessions trial).

2. Judge to decide admissibility: section 141

Section 141 (old s.136): when a party proposes to give evidence of a fact, the Judge may ask how the fact, if proved, would be relevant, and shall admit the evidence only if he thinks it would be. If evidence of one fact is admissible only on proof of another (dying declaration only on proof of death; secondary evidence only on proof of loss of the original), that other fact must be proved first, unless the party undertakes to prove it later and the Court accepts the undertaking. Where the relevancy of one fact depends on another being proved, the Judge may decide the order. The burden of proving the preliminary fact is on the party who wants to give the evidence (section 107).

3. The three stages: sections 142 and 143

Section 142 (old s.137) defines them:

• Examination-in-chief: examination of a witness by the party who calls him.
• Cross-examination: examination by the adverse party.
• Re-examination: examination, after cross-examination, by the party who called him.

Section 143 (old s.138) lays down the rules:

• Witnesses are first examined-in-chief, then (if the adverse party wishes) cross-examined, then (if the party calling him wishes) re-examined.
• Examination-in-chief and cross-examination must relate to relevant facts, but cross-examination need not be confined to the facts the witness spoke to in chief.
• Re-examination is directed to the explanation of matters referred to in cross-examination. If new matter is introduced in re-examination with the Court’s permission, the adverse party may further cross-examine on it.

4. Objects of each stage

Examination-in-chief. To elicit from the witness all the relevant facts within his knowledge that support the case of the party calling him, in his own words. Leading questions are not allowed if objected to, except on introductory or undisputed matters or with leave (section 146). The witness may refresh his memory from a contemporaneous writing (section 162).

Cross-examination. It has two objects: to destroy or weaken the evidence given in chief (by testing the witness’s knowledge, memory, opportunity to observe, and veracity, and by showing bias or previous inconsistent statements), and to elicit facts favourable to the cross-examining party. Leading questions may be asked (section 146(4)), and the witness may be asked questions to test his veracity, discover his position in life, or shake his credit (section 149). Cross-examination is a right, and evidence of a witness who has not been offered for cross-examination is ordinarily of no value. A party who does not cross-examine a witness on a point is taken to accept his version on that point: the rule in Browne v. Dunn (House of Lords, 1893), applied by Indian courts, requires a cross-examiner who intends to argue that a witness is lying to put that suggestion to him.

Re-examination. To explain or clear up ambiguities, apparent contradictions or damaging admissions that emerged in cross-examination, and to bring out the whole of a statement or document of which only part was used. It is not an opportunity to repeat the examination-in-chief or to introduce new matter without leave.

5. Persons producing documents and character witnesses: sections 144 and 145

• Section 144 (old s.139): a person summoned only to produce a document does not become a witness by producing it, and cannot be cross-examined unless he is called as a witness.
• Section 145 (old s.140): witnesses to character may be cross-examined and re-examined.

6. The Judge’s power to question: section 168

Section 168 (old s.165): to discover or obtain proof of relevant facts the Judge may ask any question he considers necessary, in any form, at any time, of any witness or party, about any fact, relevant or irrelevant, and may order production of any document or thing. The parties may not object, nor cross-examine on the answer without leave. The provisos keep limits: the judgment must rest on relevant facts duly proved; the Judge cannot compel answers protected by sections 127 to 136 (privileges) or ask questions improper under sections 151 or 152; and he cannot dispense with primary evidence of a document except where the Adhiniyam allows.

The Judge is not a mere umpire. In Ram Chander v. State of Haryana, 1981 INSC 47, (1981) 3 SCC 191, Chinnappa Reddy J. held that the Judge may actively participate in the trial to elicit the truth and protect the weak and the innocent, but must not assume the role of a prosecutor; he must not intimidate a witness or put questions in a way that frightens him into silence. In Zahira Habibulla H. Sheikh v. State of Gujarat, 2004 INSC 256, (2004) 4 SCC 158 (the Best Bakery case), the Court criticised a trial court that remained a silent spectator while witnesses turned hostile, and held that section 165 of the Evidence Act and section 311 CrPC (now section 348 BNSS) are complementary powers that a Judge must use to prevent a miscarriage of justice.

Section 348 BNSS allows any Court, at any stage, to summon or examine any person, or recall and re-examine a witness already examined, and requires it to do so if his evidence appears essential to the just decision of the case.

7. Problem

In a suit for price of goods, P’s witness W says in chief that the goods were delivered on 1 March. In cross-examination D gets W to admit that he was away in another city on that day. In re-examination P asks W, for the first time, about a written acknowledgment signed by D. D objects. Decide.

Issue. Whether new matter can be introduced in re-examination.

Law. Section 143(3).

Application. P may re-examine W to explain the admission made in cross-examination, for instance that W arranged the delivery by telephone and that his staff delivered the goods. The written acknowledgment is a new matter, not an explanation of anything raised in cross-examination. It can be introduced only with the Court’s permission.

Conclusion. D’s objection is sound unless the Court grants permission; if it does, D has the right to cross-examine W further on the acknowledgment. The document itself must be proved in the ordinary way.

How this is examined

“State the rules relating to examination-in-chief, cross-examination and re-examination” (January 2026, June 2025) and “Discuss the object of examination-in-chief, cross-examination and re-examination” (June 2025, Law of Evidence) are the regular ten-mark questions in Unit V. Write sections 140 to 143, the object of each stage, leading questions in one paragraph (section 146), and close with section 168 and Ram Chander. Questions lawful in cross-examination are in the next note.