INTRODUCTION – THE CONCEPT OF RE-EXAMINATION
Re-examination is the act or process of examining one's witness in a court of law or in an arbitration again after the witness has been cross-examined by the opposing counsel. The right of cross-examination of a witness is envisaged in Section 137 r/w Section 138 of the Evidence Act and arises only after the conclusion of cross-examination and is directed towards the explanation of any part of his evidence during cross-examination which may potentially be construed unfavorably to the party applying for re-examination. The purpose of re-examination is only to get clarification of some doubts created in cross-examination. Totally new facts which have no concern with the cross-examination cannot be introduced in re-examination.1
LAW ON RE-EXAMINATION
- Section 137 of the Evidence Act, 1872
It provides that the examination of a witness by the party who calls him shall be called his examination-in-chief; the examination of a witness by the adverse party shall be called his cross-examination and the examination of a witness, after the cross-examination by the party who calls him, shall be called his re-examination.
- Section 138 of the Evidence Act, 1872
It prescribes the order of examination and says that the witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. It also gives a statutory right to the party calling a witness to re-examine him after the cross-examination.
A cursory reading of S. 138 of the Indian Evidence Act makes it clear that re-examination can be permitted by the court to explain the facts which were put in the cross-examination. Further, Section 138 specifically says that re-examination shall be directed to explain the matters referred to, in the cross-examination. It is thus established that reexamination is not restricted to explaining any ambiguity in the oral evidence but is also to explain any matter which has been referred to in the cross-examination of the witness.2
OBJECTIVE OF RE-EXAMINATION
The object of this exercise is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion so cast on the evidence by cross-examination. Where there is no ambiguity or where there is nothing to explain, questions put in re-examination with the sole object of giving a chance to the witness to undo the effect of a previous statement should never be allowed.3
In the case of Rammi and Ors. v. State of Madhya Pradesh4 , the hon'ble Supreme Court of India has very exhaustively discussed the objective of re-examination.
- It has stated that the very purpose of re-examination is to explain matters which have been brought out in cross-examination.
- The court held that there is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that an explanation is required for any matter referred to in cross-examination, he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness, he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.
- In case where new matters are to be elicited from the witness, the same can be done with the permission of the court. If the court thinks that such new matters are necessary for proving any material fact, it must be liberal in granting permission to put forth the necessary questions.
NECESSITY FOR RE-EXAMINATION
- Setting Obscurities & Lightening Evidence
It is often said that the object of a re-examination is to afford the witness an opportunity to make explanations, rendered necessary by his cross-examination, but this is a view narrower than the principles of advocacy warrant. More can be accomplished by a skillful re-examination. Obscurities can be cleared away, and facts can be brought to stronger light by questions that rejig the memory of the witness to the facts to which he testified in his direct examination, and of which his knowledge is clear and distinct.
The purpose of re-examination is to explain any part of the cross-examination which is capable of being construed unfavorably to the party for whom he has given examination-in-chief. The re-examination cannot be allowed for new matters except with the leave of the court. It is not permissible to put in re-examination, two or three questions combined into one question.5 Further, it has been held that prayers for re-examination of a witness when rejected twice by the trial court and dealt with, is final and not worthy of interference by the Supreme Court.6
- Clearing Confusion & Ambiguities
"The business of re-examination", says Mr. Cox, "is the restoration of your witness to the confidence of himself and of the Jury". A cross-examination sometimes so confuses an honest witness that his powers of memory and reflection seem almost paralyzed, and when this occurs, the first thing to be done is to clear away the confusion and restore the power of these faculties.7
- Putting New Fact of Cross-examination in Favorable Perspective
Favorable facts in the shape of a new matter are very often developed on cross-examination, and the advocate who fails to make good use of them in the re-examination has either slept at his post or is unsuitable for his duty. However, in some cases, the facts are so fully brought out in the cross-examination as to be plain enough without assistance from the counsel conducting the re-examination, and when this happens, it is better to leave them untouched until the time comes for making them available in the argument to the Jury.
The above understanding has been corroborated by the hon'ble Supreme Court,8 whereby it is stated that, "the purpose of re-examination is explaining any part of the cross-examination which is capable of being construed unfavorably to the party for whom he has given evidence-in-chief"
Based on above, it is evident that the party who called a witness has the right to re-examine him on all matters arising out of the cross-examination for the purpose of reconciling any discrepancies that may exist between the evidence on the examination-in-chief and that which has been given in cross-examination; or for the purpose of removing or diminishing any suspicion that the cross-examination may have cast on the evidence in-chief; or to enable the witness to state the whole truth as to matters which have only been partially dealt with in cross-examination.
1 Pannayar v. State of Tamil Nadu by Inspector of Police 2009 CrLJ 4454.
2 Gajen Das and Ors. v. Legal Heirs of Ramani Kalita, (17.08.2012 - GUHC): MANU/GH/0736/2012 (Para 15)
3 Champariya Devi v. Damyanti Misra (1986) 61 CLT 601 (Ori).
4 Decided on 21.09.1999, (1999 (3) AC R 2183 (SC).
5 Charan Singh v. State of Haryana, AIR 1971 SC 1554.
6 Anil Sharma v. State of Jharkhand, AIR 2004 SC 2294.
7 Woodroffe & Amir Ali, Law of Evidence, 20th ed., Vol. IV Pg. 5300.
8 Chanan Singh v. State of Haryana, 1971 (3) SCC 406.
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