Witness Examination Cross Examination And Protection
🧾 1. Introduction
Witnesses are the eyes and ears of justice.
The success of any criminal trial largely depends on the credibility, protection, and effective examination of witnesses.
However, witnesses often face threats, intimidation, and inducement, leading to hostile testimony or withdrawal. Therefore, Indian law provides a detailed procedure for examination and cross-examination, and in recent years, the judiciary and legislature have emphasized witness protection to ensure fair trials under Article 21 of the Constitution.
⚖️ 2. Legal Framework
A. Indian Evidence Act, 1872
| Section | Provision | Description |
|---|---|---|
| Section 118 | Who may testify | Every person competent to testify unless prevented by incapacity (e.g., minors, lunatics). |
| Section 135 | Order of production | Court decides order in which witnesses are produced. |
| Section 137 | Examination of witnesses | Divides examination into three stages — Examination-in-chief, Cross-examination, and Re-examination. |
| Section 138 | Order of examinations | Witness first examined-in-chief, then cross-examined, then re-examined. |
| Section 146 | Questions lawful in cross-examination | Allows testing of veracity, credibility, and truthfulness of witnesses. |
| Section 155 | Impeaching credit of witness | Witness’s credibility can be challenged by contradiction or inconsistency. |
B. Code of Criminal Procedure (CrPC), 1973
| Section | Provision | Description |
|---|---|---|
| Section 161 | Police examination of witnesses during investigation. | |
| Section 231 & 242 | Examination of witnesses during trial (Sessions and Warrant cases). | |
| Section 273 | Evidence to be taken in presence of accused (ensuring fair trial). | |
| Section 311 | Court’s power to summon or recall witnesses at any stage. | |
| Section 327 | Trials to be conducted in open court (subject to exceptions like rape cases). |
🧑⚖️ 3. Stages of Witness Examination
1. Examination-in-Chief (Section 137, Evidence Act)
Conducted by the party who calls the witness.
Purpose: To elicit facts supporting that party’s case.
Leading questions are not permitted unless with court’s permission (Section 142).
2. Cross-Examination (Sections 137–138, 146, Evidence Act)
Conducted by the adverse party.
Purpose: To test the credibility, accuracy, and truthfulness of the witness.
Leading questions are allowed.
Court may limit indecent, scandalous, or irrelevant questions (Section 148).
3. Re-Examination
Conducted by the party who called the witness, to clarify doubts raised during cross-examination.
Should be limited to matters arising in cross-examination.
🛡️ 4. Witness Protection
Witness protection ensures that witnesses can testify freely without fear or pressure.
The Supreme Court in Mahender Chawla v. Union of India (2019) approved the Witness Protection Scheme, 2018, making it law under Articles 141 & 142 of the Constitution.
Protection measures include:
Identity concealment,
Police security,
Relocation, and
In-camera proceedings.
⚖️ 5. Landmark Case Laws
(1) Zahira Habibullah Sheikh v. State of Gujarat (Best Bakery Case) (2004) 4 SCC 158)
Facts:
After the 2002 Gujarat riots, witnesses in the Best Bakery case turned hostile due to fear and intimidation, resulting in acquittal of all accused.
Judgment:
The Supreme Court ordered a retrial outside Gujarat and held:
“A fair trial means fair investigation, fair prosecution, and fair opportunity to witnesses to depose truth without fear.”
Significance:
Recognized the importance of witness protection as part of fair trial.
Held that courts must prevent miscarriage of justice by ensuring witnesses are safe and unthreatened.
(2) State of Uttar Pradesh v. Ramesh Prasad Misra (1996) 10 SCC 360)
Facts:
The issue was whether the testimony of a witness examined-in-chief but not cross-examined could be relied upon.
Judgment:
The Supreme Court held:
“If a witness’s examination-in-chief remains unchallenged in cross-examination, the statement can be safely relied upon as truthful and accepted as correct.”
Significance:
Clarified that cross-examination is the key to challenge witness credibility; absence of it strengthens the prosecution’s case.
(3) Sat Paul v. Delhi Administration (1976) 1 SCC 727)
Facts:
The prosecution’s own witness turned hostile and contradicted his earlier statement. The question was whether the prosecution could cross-examine its own witness.
Judgment:
The Supreme Court held that under Section 154 of the Evidence Act, a party may, with court’s permission, cross-examine its own witness if he appears hostile or unreliable.
Significance:
Recognized the concept of a “hostile witness.”
Allowed the prosecution to use hostile witness testimony if it finds support from other reliable evidence.
(4) Mohanlal Shamji Soni v. Union of India (1991) Supp (1) SCC 271)
Facts:
The issue was whether the court could recall a witness for further examination after completion of trial evidence.
Judgment:
The Supreme Court held:
“Section 311 CrPC gives wide powers to the court to summon or recall any witness at any stage of trial if their evidence appears essential to a just decision.”
Significance:
Reaffirmed the court’s active duty to ensure justice by discovering truth — not merely acting as a passive umpire.
(5) Mahender Chawla v. Union of India (2019) 14 SCC 615)
Facts:
Witnesses in a high-profile case faced threats to life and intimidation. The petition sought a formal witness protection mechanism.
Judgment:
The Supreme Court approved and enforced the Witness Protection Scheme, 2018, declaring it law of the land until Parliament enacts legislation.
Significance:
Recognized witness protection as part of Article 21 (Right to Life and Fair Trial).
Directed all states to implement the scheme uniformly.
Marked India’s first institutional witness protection program.
🧩 6. Key Legal Principles from Case Law
| Principle | Case | Essence |
|---|---|---|
| Witness protection is part of fair trial | Zahira Sheikh (Best Bakery Case) | Witnesses must testify freely without fear |
| Unchallenged testimony is credible | Ramesh Prasad Misra Case | Absence of cross-examination strengthens evidence |
| Hostile witnesses can be cross-examined | Sat Paul Case | Prosecution can challenge its own witness |
| Court can recall witnesses for justice | Mohanlal Soni Case | Courts have duty to elicit truth |
| Witness Protection Scheme, 2018 valid law | Mahender Chawla Case | Ensures protection under Article 21 |
🏛️ 7. Conclusion
The examination and protection of witnesses are fundamental pillars of the criminal justice system.
While the Indian Evidence Act ensures procedural fairness in examination and cross-examination, judicial interpretation has evolved to protect witnesses from intimidation and ensure truth reaches the court.
Key takeaways:
Cross-examination remains the most effective tool for truth discovery.
Judges have an active duty to safeguard witnesses and ensure justice.
Witness protection is now a constitutional requirement under Article 21.
Thus, for justice to prevail, witnesses must not only be heard but also protected, ensuring that courts are guided by truth free from fear.
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