Introduction
Bharatiya Sakshya Adhiniyam, 2023 (BSA), outlines the procedures for witness examination and cross-examination. This article will focus on these key provisions under Bharatiya Sakshya Adhiniyam, 2023 (BSA)
Order of Examination (Section 140 of BSA):
The order in which witnesses are produced and examined is regulated by existing laws related to civil and criminal procedures or, in their absence, by the court's discretion.
Relevance and Admissibility (Section 141 of BSA):
Before admitting evidence, the judge may question the party proposing to give evidence about its relevance. This scrutiny ensures that only relevant facts are introduced. If the proposed fact's relevance depends on another, the court may choose to permit evidence of the first fact before the second is proven or vice versa.
Examination-in-Chief, Cross-Examination, and Re-Examination (Section 142 of BSA):
- Examination-in-Chief: Conducted by the party calling the witness.
- Cross-Examination: Conducted by the adverse party to test the witness's veracity and explore their position in life.
- Re-Examination: Conducted by the calling party to explain matters raised during cross-examination.
Witness Production and Cross-Examination of Document Custodians (Sections 143-144 of BSA):
Witnesses are first examined-in-chief, followed by cross-examination and re-examination. It is to be noted that, a person summoned to produce a document is not automatically considered a witness and cannot be cross-examined unless called as a witness.
Cross-Examination of Character Witnesses (Section 145 of BSA):
Witnesses to character can be cross-examined and re-examined, allowing a comprehensive evaluation of their statements and credibility.
Leading Questions (Section 146 of BSA):
- Definition: Leading Questions are those questions which suggest the expected answers to the witness.
- Permissibility: Leading Questions are restricted in examination-in-chief and re-examination, subject to the court's permission. However, they are allowed in cross-examination, especially for introductory or undisputed matters.
Production of Documents During Examination (Section 147 of BSA):
Witnesses may be asked if a relevant contract or disposition of property was not contained in a document. The court may delay such evidence until the document is produced or its admissibility established.
Cross-Examination on Previous Statements (Section 148 of BSA):
A witness may be cross-examined on previous written statements relevant to the matter in question, even without showing the writing initially. However, if used for contradiction, the relevant portions must be highlighted before proving the writing.
Wide Scope of Cross-Examination (Section 149 of BSA):
Cross-examination can cover questions testing veracity of the testimony of witness, revealing the witness's identity, and examining their character.
Limitations in Cases of Offences against Consent (Section 149 of BSA - Proviso):
In specific cases, under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is an issue, evidence or questions related to the general immoral character or previous sexual experience of the victim are not permissible in cross-examination.
FAQs on Witness Examination and Cross-Examination under BSA, 2023
1. What governs the order in which witnesses are examined?
- The order of witness examination is regulated by existing laws related to civil and criminal procedures or, in their absence, by the court's discretion. (Section 140 of BSA)
2. How does the judge ensure the relevance of evidence before admitting it?
- The judge may question the party proposing to give evidence about its relevance, ensuring that only pertinent facts are introduced. (Section 141 of BSA)
3. What are the key stages in the examination of a witness?
- The stages include Examination-in-Chief (by the calling party), Cross-Examination (by the adverse party), and Re-Examination (by the calling party to explain matters raised during cross-examination). (Section 142 of BSA)
4. Can a person summoned to produce a document be automatically considered a witness?
- No, merely producing a document does not make a person a witness, and they cannot be cross-examined unless called as a witness. (Sections 143-144 of BSA)
5. Are witnesses to character immune from cross-examination?
- No, witnesses to character can be cross-examined and re-examined, allowing a comprehensive evaluation of their statements and credibility. (Section 145 of BSA)
6. What are leading questions, and when are they permissible?
- Leading questions suggest expected answers to witnesses. They are restricted in examination-in-chief and re-examination but are allowed in cross-examination. (Section 146 of BSA)
7. Can a witness be cross-examined on previous written statements without showing the writing initially?
- Yes, a witness may be cross-examined on previous written statements relevant to the matter in question without showing the writing initially. (Section 148 of BSA)
8. What is the scope of cross-examination under BSA?
- Cross-examination can cover questions testing the veracity of testimony, revealing the witness's identity, and examining their character. (Section 149 of BSA)
9. Are there limitations on questions related to the victim's character in cases of offences against consent?
- Yes, in specific cases of offences against consent, questions related to the victim's general immoral character or previous sexual experience are not permissible in cross-examination. (Section 149 of BSA - Proviso)
Examination and cross examination under BSA (Bharatiya Sakshya Adhiniyam): Notes
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