SVKMS

NMIMS SCHOOL OF LAW

A PROJECT SUBMITTED ON;

GENERAL RULES WITH RELATION TO EXAMINATION IN CHIEF
CROSS EXAMINATION AND RE-EXAMINATION

IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING

SCHEME, FOR TRIMESTER VI OF 2015-2016, IN THE SUBJECT OF
LAW OF EVIDENCE
SUBMITTED TO FACULTY:
MR GAURAV GADODIA
FOR EVALUATION
SUBMITTED BY:
ADARSH HIMATSINGHKA (A032)
ARNAV DAS (A026)
ANUSHKA SACHAN (A050)
MUDIT SINGH (A061)
B.B.A L.L.B (HONS.)

TABLE OF CONTENTS

SR.
NUMBER
1.
2.
3.
4.
5.
6.
7.
8.
9.

PARTICULARS
Acknowledgement
Table of Cases
Research Methodology
Introduction
Legal Analysis
Case Analysis
Conclusion
Annexure
References and Bibliography

PAGE
NUMBER
3
3
4
5
6
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30
32
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Table of cases:

M C Verghese vs T J Ponnan, AIR 1976

Sat Pal vs. Delhi Administration, 1976
State of UP vs Nahar Singh, AIR 1998
Hari Narayan singh v/s State of West Bengal
Bhagwan Singh v/s State of Bihar (AIR 1976 SC 202)

ACKNOWLEDGEMENT
We take this opportunity to express our profound gratitude and deep regards to my guide
PROF. GAURAV GADODIA for his exemplary guidance, monitoring and constant
encouragement throughout the course of this thesis. The blessing, help and guidance given by
him time to time shall carry me a long way in the journey of life on which I am about to
embark.
We also take this opportunity to express a deep sense of gratitude to our friends and relatives
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

RESEARCH METHODOLOGY
AIM & OBJECTIVE OF THE STUDY
This project deals with the rules and regulations regarding examination in chief, cross
examination and re-examination. We have discussed how a witness has to be dealt with
throughout the procedure and all the sections that relate to a witness. An annexure of a
fictitious case has been added to further examine a case that explains a hostile witness stance
and thereby deals with examination in chief and cross examination that was carried out in the
court of law.

RESEARCH QUESTIONS
What is a leading question? When such questions cannot and when such questions can
be asked?
Can a witness refuse to answer a question?
When can a witness be compelled answer a question?
What communications are deemed to be privileged communications?
Who is hostile witness? Under what circumstances a person is allowed to cross
examine his own witness? What are the limits of such rights of cross examination?

LIMITATION OF THE PROJECT

The project fails to conduct a primary research thorough examination, interviews and surveys
due to lack of time. The research of the project limits to book and internet content.

INTRODUCTION
It's been said, "A good lawyer turns evidence into fact and fact into truth." Because they bear
the burden of proving the case beyond a reasonable doubt, prosecutors must call witnesses in
every trial. Examination in Chief is the keystone in the prosecution's arch. It is also important
to the defender who will call witnesses in support of the defensive theory. Direct examination
is a vastly overlooked skill. Unlike cross-examination, there is very little written material to
guide practitioners through the examination of their own witnesses. This is surprising because
cases are actually won or lost on the fruits of direct examination.
Examination in Chief is one of the most subtle and sophisticated forms of advocacy. It is
subtle because a good chief examination focuses entirely on the witness and their evidence.
The evidence should appear to be flowing effortlessly from the witness. It should look easy.
Whereas the witness should be memorable, the lawyer should not. Chief examination is
sophisticated advocacy because during its course counsel is actually presenting their case,
while trying to satisfy a multitude of objectives, such as maximizing the potential of each
witness to present all relevant evidence in as logical, credible, persuasive and accurate
manner as possible, while knitting all witnesses' evidence together in a coherent fashion in
order to prove all the elements of the offence beyond a reasonable doubt. Examination in
Chief thus becomes a starting point for any litigation. In the adversarial system of our
country, it becomes a tool of extracting truth from the facts.

LEGAL ANALYSIS
Section 137 and 138
Witnesses are examined by the parties or their advocates by the way of asking questions with
a view to elicit responses that build up a factual story. To be able to derive meaningful
conclusions from the statements of the witnesses, it is necessary to follow a standard pattern
in presenting them and questioning them before the court. It will also be impractical and time
consuming to call witnesses multiple times at random. Besides causing severe inconveniences
to the witnesses, it will also not be helpful in arriving at a decision.
Section 137 defines three stages of examination of a witness as follows- Examination-inchief-The examination of a witness, by the party who calls him, shall be called his
examination-in-chief.
Cross-examination- The examination of a witness by the adverse party shall be called his
cross-examination.
Re-examination - The examination of a witness, subsequent to the cross-examination by the
party who called him.
Section 138 specifies the order of examinations - Witnesses 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. The examination and cross-examination must relate to relevant facts but the
cross-examination need not to be confined to the facts which the witness testified on his
examination-in-chief. Direction of re-examination - The re-examination shall be directed to
the explanation of matters referred to in cross-examination, and if new matter by permission
of the Court, introduced in re-examination, the adverse party may further cross-examine.

Considering the stages one by one:

1. Examination in Chief - The first stage is where a witness is examined by the party
who has called it. In this stage, the goal of the party is to make the witness make
statements that prove the facts alleged by the party. The party asks questions, the
responses to which are expected to support the factual story submitted by the party
and should be in their favour.
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There is a general assumption that counsel and witness are on the same side. Direct
examination is subjected to two major rules: leading questions and refreshing memory.
Questions can be asked in an open manner on any relevant and material matter.

Leading Questions
Witnesses should not be asked leading questions on disputed matters. There are two forms of
leading questions:
1. Questions that suggests the answer desired by the questioner, or
2. Questions that assume the existence of a disputed fact before the witness has testified about
it.
The witness's answer is admissible, but entitled to little, if any, weight in the determination of
a critical issue. The trial judge, however, has discretion to relax the prohibition and permit a
party or his counsel to ask leading questions of a witness called by the party (much depends
on whether opposite party objects to use of leading questions). On material points, a party
must not lead their own witness, because there is a presumption that the witness is disposed
to calling counsel. On cross-examination, however, this is acceptable. There are also some
possible exceptions:

Purpose of identifying persons or things - can point witness directly to them (e.g. to
establish qualifications).

Where one witness is called to contradict another as to expression (e.g. did other
witness use a specific expression? Do you agree with it?)

If circumstances show that a witness is not favourable to a party who called him and
is either hostile or unwilling to give evidence, or if a witness shows bias in favour of
the cross-examining party, the right to leading questions can be restrained (i.e. hostile
witness).

Inability of a witness to answer questions that obviously arises from a defective

memory or complicated issue.

With the court's leave, a witness having difficulty testifying because of youth, lack of
education, mental disability or other reason may be asked leading questions.

2. Cross Examination The second stage is where the witness is cross examined by the
opposite party. In this stage the goal of the party which is examining the witness is to
poke holes in the story of the witness with a view to discredit the evidence that the
witness has given. However, when it is intended to suggest to the court that the witness is
not speaking the truth on a particular point, it is necessary to direct his attention to it by
questions in this stage. The witness must then be given an opportunity to explain the
apparent contradictions he made while he is in the witness box and justify his stance.
The counsel can ask leading questions. There is a presumption that counsel and witness are
not on the same page. Answers of witnesses will be resistant to opposing counsel.

Right of Cross-Examination
The Right of Cross Examination is an absolute right and essential to a fair trial. If cross
examination brings up matters not introduced in examination in chief, then the party calling
the witness has a right to re-examine. The basic theory is that each side should have a chance
to prove their evidence on each topic with each witness.

What happens if the witness says something false? Counsel should offer evidence to
contradict.

It is only possible to do this with material issues, not collateral issues.

Scope of Cross-Examination
The scope is not confined to examination in chief. Even though a witness gives favourable
evidence to the examiner in chief, the opposing counsel has a chance to solicit favourable
answers or disprove the answers given in direct examination. Credibility is a central issue in
cross-examination.

Objects of cross-examination are to adduce testimony favourable to cross-examiner's

case, undercut damaging testimony on examination in chief, and impeach the
witness's credibility.

The scope is not limited to matters raised on examination in chief, but it must be relevant
(relate to a material fact, a relevant fact, or impeachment of witness's credibility). The witness
is called and sworn, but not questioned in chief by the party calling him. Rather, he is merely
offered for cross-examination and is not liable to impeachment of credibility.
The rules of admissibility apply to cross-examination.
e.g. If an expert's out-of-court statement is inadmissible as hearsay, contents of the statement
cannot be put into evidence by device of cross-examining another expert witness.
The Crown may introduce a statement made by the accused only after proving that it was
made voluntarily and cannot cross-examine unless it is the same. But a co-accused can crossexamined on the accusers statement without proving voluntariness.

Model of Questioning
Leading questions are allowed on cross-examination, but the judge has discretion to disallow
them when the witness appears eager to please the cross-examiner. Favourable witness
answers to leading questions on cross-examination are entitled to no weight.
Leading questions are permitted during cross-examination, but misleading questions are not
allowed. There are three forms of cross-examination and they can all be used together:

Questions about facts that are material and relevant

Questions that aim to weaken examination on testimony given in direct examination

(e.g. suggest that it is exaggerated or incomplete)

Questions that aim to impeach the witness's credibility (untruthful, inaccurate, and
dishonest statements, or involvement in discredited acts)

4. Re-examination - The final stage, is where the witness is re examined by the party who
called the witness if, in the cross examination stage, inconvenient answers are given by the
witness. The goal in this stage is to nullify the effect of such answers and to re-establish the
credibility of the evidence given by the witness in the witness box.
5. Rebuttal evidence- This is also known as evidence in reply. This is a chance for the
prosecution to redress issues that are a surprise, as long as they are not collateral issues.

What is a leading question? (Section 141) When such questions

cannot and when such questions can be asked? (Sections 142, 143)

According to BENTHAM, a Leading Question is a question that indicates to the witness the
real or supposed fact which the examiner expects or desires to have confirmed with the
witness. For example, "did you not work with Mr X for five years?", "is your name so and
so", "did you not see the accused leave the premise at 8 PM?" are all leading
questions. Section 141 defines a Leading question thus - Any question suggesting the answer
which the person putting it wishes or expects to receive is called a leading question. In the
previous examples, it is clear that the questions themselves contains the answer and the
examiner is merely trying to confirm those answers with the witness and are thus leading
questions.
When leading questions may and may not be asked as per Section 142 - Leading
questions must not, if objected to by the adverse party, be asked in an examination-in-chief,
or in re-examination, except with the permission of the Court. The Court shall permit leading
questions as to matters which are introductory or undisputed or which have, in its opinion,
been already sufficiently proved.
Further, Section 143 provides that Leading questions may be asked in cross-examination.
The purpose of Examination in Chief of a witness is to enable the witness to tell the court the
relevant facts of the case. A question should be put to him about a relevant fact and he should
be given ample scope to answer the question from the knowledge that he posses about the
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case. The witness should be left to tell the story in his own words. However, as seen in the
previous example, instead of eliciting information from a witness, information is being given
to the witness. This does not help the court arrive at the truth. If this type of questioning is
allowed in Examination in Chief, the examiner would be able to construct a story through the
mouth of the witness that suits his client. This affects the rights of the accused to a fiair trial
as enshrined in Article 21 of the constitution and is therefore not allowed. A question, "do you
not live at such and such address? amply gives hint to the witness and he will immediately
say yes. Instead, the question should be, "where do you live?" and he then should be allowed
to answer in his own words as he may wishes to answer the said question.
Normally, the opposite party raises an objection when a leading question is asked in
Examination in Chief or Re Examination. If the examining party then desires, it can request
the court for its permission to ask the question and the court permits the question if it pertains
to matters which are introductory, matters on which there is no dispute, or matters which are
proven.
Overall, a leading question can be asked in the following situations 1. In Examination-in-Chief and Re-examination if a) the opposite party does not object or
b) the question is about the matter which is introductory, undisputed, or is proven or the court
permits the question overruling the objection of the opposite party.
2. In Cross examination.

Can a witness refuse to answer a question? (Section 121-129) / When can a

witness be compelled answer a question? (Section 147-148)? What
communications are deemed to be privileged communications?
In general, if the question is relevant to the case, the witness is bound to answer it. This is
provided by Section 147, which says that if any question relates to a matter relevant to the
suit or proceeding, the provisions of Section 132 shall apply. Section 132 provides that a
witness is not excused from answering a question even if the question incriminates the
witness. To ensure that the witness speaks the truth, proviso to Section 132 provides that if
the answer of the witness incriminates the witness, such answer shall not be used to arrest or
prosecute him, except if he gives false evidence. Although it is the goal of the court to find
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out the truth from a witness, there are certain situations in which a witness is permitted to
refuse to answer a question.
There are also situations where a witness is prohibited from answering certain kind of
questions. These are situations that are critical to the foundation of a moral society. These
situations are provided in the form in privileges to a witness in Sections 121 to 129.

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Privileged Communications:
121. Judges and Magistrate - No Judge or Magistrate shall, except upon the special order of
some Court of which he is subordinate, be compelled to answer any questions as to his own
conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge
in Court as such Judge or Magistrate but he may be examined as to other matters which
occurred in his presence whilst he was so acting.
Illustration:
A is accused before the Court of Session of having given false evidence before B, a
Magistrate. B cannot be asked what A said, except upon the special order of the superior
Court.
122. Communications during marriage - No person who is or has been married, shall be
compelled to disclose any communication made to him during marriage by any person to
whom he is or has been married; nor shall he be permitted to disclose any such
communication, unless the person who made it, or his representative in interest, consents,
except in suits between married persons, or proceedings in which one married person is
prosecuted for any crime committed against the other.
As held in M C Verghese vs T J Ponnan, AIR 1976, SC held that it is not material whether
the relationship between husband and wife subsists at the time of giving the evidence. So,
where a woman was divorced from first husband and married another person, and was called
to provide evidence of a communication between her and her first husband that happened
while they were married, she was deemed incompetent to do so.
123. Evidence as to affairs of State - No one shall be permitted to give any evidence derived
from unpublished official records relating to any affairs of State, except wit the permission of
the officer at the head of the department concerned, who shall give or withhold such
permission as he thinks fit.
124. Official communications - No public officer shall be compelled to disclose
communications made to him in official confidence, when he considers that the public
interests would suffer by the disclosure.

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125. Information as to commission of offences - No Magistrate or Police-officer shall be

compelled to say whence he got any information as to the commission of any offence, and no
Revenue-Officer shall be compelled to say whence he The Orient Tavern any information as
to the commission of any offence against the public revenue.
Explanation - "Revenue-Officer" in this section means any officer employed in or about the
business of any branch of the public revenue.

126. Professional communications - No barrister, attorney, pleader or vakil, shall at any

time be permitted, unless with his client's express consent to disclose any communication
made to him in the course and for thee purpose of his employment as such barrister, pleader,
attorney or vakil, by or on behalf of his client, or to state the contents or condition of any
document with which he has become acquainted in the course and for the purpose of his
professional employment or to disclose any advice given by him to his client in the course
and for the purpose of such employment.
Provided that nothing in this section shall protect from disclosure1. Any communication made in furtherance of any illegal purpose,
2. Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such showing that any crime or fraud has been committed since the
commencement of his employment. It is immaterial whether the attention of such barrister,
pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation - The obligation stated in this section continues after the employment has ceased.

127. Section 126 to apply to interpreters etc. - The provisions of Section 126 apply to
interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.
128. Privilege not waived by volunteering evidence - If any party to a suit gives evidence
therein at his own instance or otherwise, he shall not be deemed to have consented thereby to
such disclosure as is mentioned in Section 126, and if any party to a suit or proceeding calls
any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have

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consented to such disclosure only if he questions such barrister, attorney or vakil on matters
which, but for such question, he would not be at liberty to disclose.
129. Confidential communication with Legal Advisers - No one shall be compelled to
disclose to the Court any confidential communication which has taken place between him and
his legal professional adviser, unless he offers himself as a witness in which case he may be
compelled to disclose any such communication as may appear to the Court necessary to be
known in order to explain any evidence which he has give, but not others.
Further, Section 148 gives discretion to the court to allow the witness to refuse to answer a
question when the question affects the credit of the witness by injuring his character and is
otherwise irrelevant. Generally, court allows the witness to refuse to answer the question
when the question relates to a matter so remote in time or of such a character that that the
truth of the imputation would not affect the opinion of the court as to the credibility of the
witness.

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Who is hostile witness? Under what circumstances a

person is allowed to cross examine his own witness? What
are the limits of such rights of cross examination? (Section
154)
In general, a witness is considered to be a hostile witness when he has feelings which are
against the party which has invited him for his testimony or when he adopts an adverse stance
towards the party which has invited him. A similar but categorically different kind of witness
also exists which is called as Unfavourable Witness. An unfavourable witness is not hostile
towards the calling party but his testimony fails to give evidence in support of the calling
party or gives evidence that proves the opposite of what the calling party intends to prove. In
such a case, it becomes important for the calling party to put such questions to the witness
that would discredit his testimony. Such questions are normally asked by the adverse party in
cross examination but when a witness turns hostile or unfavourable, the witness can be cross
examined by the party who had called the witness.

However, it must be noted that Indian Evidence Act, 1872, mentions neither Hostile Witness
nor Unfavourable witness. As per Section 154 : Question by party of his own witness - (1)
The Court may, in its discretion, permit the person who calls a witness to put any questions to
him which might be put in cross-examination by the adverse party. (2) Nothing in this section
shall disentitle the person so permitted under sub-section (1), to rely on any part of the
evidence of such witness."
Unlike the law in England, In India, the grant of permission to cross examine one's witness
by a party is not conditional on the witness being declared hostile or unfavourable.
Granting such permission is entirely upon the discretion of the court. The discretion is
unqualified and is used whenever the court gets a feeling from the temper, attitude, or past
statements of the witness, that he is being untruthful or has become unpredictable.

It was thought that once a witness is declared hostile, his entire testimony should be excluded
because the only purpose of cross examination is to discredit the witness. However, this view
is not correct. It is important to understand that the purpose of cross examination is not
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merely to discredit the witness but is also to elicit true facts about the case that would build
the case of the cross examiner. When a party confronts his own witness, with the permission
of court, he does so with the hope that the witness might revert back to his story that supports
the calling party.
Bhagwan Singh v/s State of Bihar (AIR 1976 SC 202)
(Ratio-Cross-Examination of Hostile Witness)
In this case Supreme Court observed where the court gives permission to the prosecutor to
Cross-Examine his own witness thus characterizing him as, hostile witness that fact does not
completely effaces his evidence. The evidence remains admissible in the trial and there is no
legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

Further, Section 154 does not technically tantamount to cross examining the witness. Strictly
speaking, cross examination can only be done by the adverse party. Therefore, any party - the
calling party or the adverse party may rely on any part of the statement of such a witness.
This is exactly what is conveyed by sub clause (2) of Section 154.
Thus, in the case of Sat Pal vs. Delhi Administration, 1976, it was held that in a criminal
prosecution, when a witness is cross examined and contradicted with the leave of the court by
the party calling him, his evidence cannot, as a matter of law, be treated as completely wiped
off the record altogether. If is for the court to consider in each case whether as a result of such
cross examination and contradiction, the witness stands thoroughly discredited or still can be
believed in regard to a part of his testimony.
The court will exercise its discretion only when it is satisfied that the witness has turned
hostile to the party who calls him as a witness. In criminal cases, the court may be so satisfied
by examining the statement given by the witness and recorded by the police during
investigation under Section 162 of CrPC and comparing with the evidence given. In civil
cases, if an advocate has prepared a proof of the evidence of the witness in his chambers, this
could be produced in court and compared with the testimony of the witness.

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The extent of the questions is same as that of the extent of the questions that can be put in
cross examination by an adverse party. Thus, rules given above in Section 146 apply.
However, a mere inconvenient answer given by the witness is not sufficient to declare him
hostile. The court must be satisfied that he has really turned hostile to the party calling him as
a witness.

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When and how may the credit of a witness be impeached

by a party? (Sections 146, 153, 155)
Impeaching the credit of a witness means to show the real character of the witness so that the
court may not trust him. Credibility of a witness is very important for the court in deciding
the truth of the testimony. Indeed, it would be unfair to convict anybody solely on the
testimony of a habitual liar. Thus, it is imperative upon the adverse party to make sure that
the witness is credible and so it can ask questions that may impeach the credit of the witness.
THE WHEN:
As per Section 146, which describes the questions that are lawful in cross examination, it is
lawful to ask questions during cross examination to test his veracity, to discover who he is
and what his position is in live, and to shake his credit by injuring his character. Thus, it is
clear that the credit of a witness can be impeached by the adverse party in his cross
examination. However, when it is suggested that the witness is not speaking the truth, it is
necessary to draw his attention to it by questions in cross examination. It cannot be argued
that a witness is unworthy of credit without giving his an opportunity to explain while he is in
the witness box. It was held by SC in State of UP vs Nahar Singh, AIR 1998, that if you
indent to impeach a witness, you are bound, while he is in witness box, to give him an
opportunity to explain, even as a rule of profession ethics and fair play. A similar provision is
given by Section 145 as well, which says that when a witness is cross examined about his
previous writing, without such writing is shown to him or is proved, and if it is intended to
contradict his writing, his attention must be drawn to those parts which are to be used for the
purpose of contradicting him, before such writing is proved.
Hari Narayan singh v/s State of West Bengal
(Ratio-Impeaching the credit of a Witness by Cross-Examining)
According to this case court observed that it is not necessary that all the persons who happen
to be there should be brought as witnesses. One witness out of several is good enough, if his
testimony legally acceptable and believable.
When a witness turns hostile or unfavourable, the same right becomes available to the party
who has called the witness. This is provided for by Section 154, which says that the Court
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may, in its discretion, permit the person who calls a witness to put any questions to him
which might be put in cross-examination by the adverse party.

The How
If a witness denies the suggestions put in cross examination, evidence to contradict him can
be called. This flows from the general rule given in Section 5, which allows evidence of
relevant facts to be given. However, when such evidence is not relevant otherwise and is only
useful in shaking the credit of the witness, the provisions of Section 153 and 155 are
applicable.

Section 155- Impeaching credit of witness

The credit of a witness may be impeached in the following ways by the adverse party, or,
with the consent of the Court, by the party who calls him(1) By the evidence of persons who testify that they, from their knowledge of the witness
believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bride, or has
received any other corrupt inducement to give his evidence.
(3) By proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted;
Explanation A witness declaring another witness to be unworthy of credit may not,
upon his examination-in-chief, give reasons for his belief, but he may be asked his
reasons in cross-examination, and the answers which he gives cannot be contradicted,
though, if they are false, he may afterwards be charged with giving false evidence.

Section 153 - Exclusion of evidence to contradict answers to questions testing

veracity
When a witness has been asked and has answered any question which is relevant to the
inquiry only in so far as it tends to shake his credit by injuring his character, no evidence
shall be given to contradict him; but, if he answers falsely, he may afterwards be charged
with giving false evidence.

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Exception 1 - If a witness is asked whether he has been previously convicted of any

crime and denies it, evidence may be given of his previous conviction.
Exception 2 - If a witness is asked any question tending to impeach his impartiality, and
answers it by denying the facts suggested, he may be contradicted.

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CASE ANALYSIS
Best Bakery Case & Law of Evidence
Hearsay evidence in the Law of Evidence has been introduced in sec.60 which gives the
direction that oral evidence should be direct. Any evidence coming from a second or third
person is said to be hearsay. It is secondary evidence which is admissible in court only in
certain circumstances.
Section .60 of the Indian Evidence Act lays down that the oral evidence must be direct, if it
refers to a fact evidence must be direct. if it refers to a fact which could be heard, it must be
the evidence of a witness who says he heard it. The evidence before the court can be divided
into original and unoriginal. The original is that which a witness reports himself to have seen
or heard through the medium of his own senses. Unoriginal also called derivative,
transmitted, secondary or hearsay, is that which a witness is merely reporting and not himself
heard or seen.
In this case it is important because except for two main witnesses all the persons provided
hearsay evidence. Many of the witnesses turned hostile and the remaining were not found to
be that credible. Also in the end when the main witness changed her statements many times
the court amassed a fine on her in lieu of giving misleading statements many times.
Facts of the case:The given case also famously known as the BEST BAKERY CASE can be summarised in the
following timeline:March 1, 2002: Vadodra (erstwhile Barodra), Gujarat, the ignominious Best Bakery massacre
took place as nearly 1000 rioters swooped on the bakery-cum-residence owned by late
Habibullah Sheikh at 2100 hours IST and within a matter of hours eleven members of the
Sheikh family and three bakery employees were either charred to death or hacked to pieces.
The defence had argued that only the FIR of March 1, 2002 (of one Raizkhan Amin
Mohammed Pathan) is admissible in the Best Bakery case, while the FIR of March 4, 2002
(of the star witness Zaheera Sheikh) was manipulated by the police.

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April 2002: The National Human Rights Commission (NHRC) in its report of April 2002 had
recommended that the case be handed over to the CBI.
May 19, 2003: Zaheera, her mother Sehrunissa and her brothers Nafitullah and Nabiullah
retracted their statements in court. Zaheera said that she was on the terrace while the incident
took place and couldnt identify the accused.

June 27, 2003: All the 21 accused in the Best Bakery carnage were acquitted by a local court
for lack of evidence. Additional Sessions Judge H U Mahida feared the police may have
implicated innocents.
This was the first verdict in a case relating to the post-Godhra communal violence. The
judgement accepts the argument without even considering the fact that statements similar in
import to the March 4th FIR were made by witnesses before several agencies and/or
organizations well after March 4, 2002, and affirmed, according to media reports, as recently
as February 2003.
The trial in the case began on May 9, 2003 in a fast track court. Delivering his 24-page
judgment, Mahida said, "It was proved beyond doubt that a violent mob had attacked the
bakery and killed 12 persons. However, there was no legally acceptable evidence to prove
that any of the accused presented before the court had committed the crime." Nobody from
the complainants' side was present in the court premises when the judgment was pronounced.
July 5, 2003: Zaheera along with her mother told The Sunday Express that she lied in court
because she feared for her life.
July 7, 2003: Zaheera said that Bhartiya Janta Party (BJP) MLA Madhu Srivastava and his
cousin, Congress councilor Chandrakant Srivastava were behind the threats and sought retrail outside Gujarat.
July 8, 2003: National Human Rights Commission visited Vadodra to check papers in the
Best Bakery case.

23

July 31, 2003: NHRC moves Special Leave Petition in Supreme Court asking for a retrial
outside Gujarat.
April 12, 2004: Supreme Court orders the retrial to be held outside Gujarat in Maharashtra.
The orders were passed by Justice Aoraiswamy Rajin and Justice Arijit Pasayat.

September 24, 2004: Charges were framed by Judge Abhay Thipsay.

October 4, 2004: The re-trial begins. Following the examination of formal prosecution
witnesses in the first weeks, independent eyewitnesses to the Best Bakery massacre had
begun testifying on October 27, 2004.
Among these were Tufel Ahmed, Raees Khan Pathan and Shehzad Khan, all workers in the
Best Bakery who were eyewitnesses to the night-long attack.
November 3, 2004: In an affidavit to the High Court, If we dont lie as instructed by Teesta,
then these people will get me and my family members killed, Zaheera said with regard to
Teesta Setalvad.

She said that after the fast track court had acquitted the 21 accused, two Muslims had barged
into her house and told her that she would have to change her statement in the interest of the
community and thereafter she along with brother were taken to Mumbai to Teesta Setalvad.
She however did not divulge the exact date when she was able to flee from Mumbai but said
that Teesta has had her held captive and it was she who had made her sign legal papers and
the matter was taken to Supreme Court against her wishes.
Since November 9, 2004: Zaheera went into hiding and even skipped the November 17, 2004
hearing at Mumbai court despite summons being issued to her and her brothers. The silver
lining however has come in the form of Zaheeras cousin-Yasmin Sheikh who appeared as a
witness on the same date and identified 11 of the 21 accused in the Best Bakery case.
November 29, 2004: Zaheera Sheikh, prime witness in the Best Bakery case, appeared before
24

the trial court in Mumbai amidst tight police security to give her testimony but did not depose
as the prosecution chose not to examine her.
Prosecutor Manjula Rao told the designated Judge Abhay Thipsay that she would examine
Zaheera at the end of the trial and not at this stage. Thereafter, Zaheera left with her police
escort and her lawyer Harshad Ponda assured that she would depose as and when the court
summoned her.
Nov 18,2004: Zaheeras brother Nasibullah Sheikh appeared in court only to retract his
earlier statement. He confirmed to the designated judge Abhay Thipsay that someone had hit
him in the head, and he had gone unconscious. And by the time he could regain his senses the
bakery had been burnt and so he does not recognise the accused. Something which he had
once refuted.
Jun 17, 2005: The cross-examination of investigating officer P P Kanani. Mr. Kanani, who
took over as investigating officer from Himmatsinh Baria of Panigate Police Station on
March 10, 2002, gave details of the case in a chronological order.

August 29, 2005: A Supreme Court appointed Committee indicted Zaheera Sheikh, key
witness in the Best Bakery case, as a liar. The Committee did not mince any words in
criticizing Zaheera, who has given a series of flip-flop statements.

The Committee, headed by the Supreme Court Registrar General said in its report, She has
developed an image of self-condemned liar whose statements alone cannot safely be
accepted.
Case comments:The Supreme Court of India, on 8th of March, 2006 sentenced Zaheera Sheikh, a witness,
cum complainant cum aggrieved, cum turned hostile, for giving, a flip flop and contrary,
evidence on different occasions, to a one year simple imprisonment term. She was also fined
Rs 50,000 on charges of perjury. It was done on the basis of a report, submitted by a high
powered committee headed by Registrar-General of the Supreme Court. The Supreme Court
had on January 10,2005 ordered the committee to inquire into the whole issue The committee
in its report called Zahira Sheikh a self-condemned liar. The Court also observed that this
25

is a classic example of a case where evidences were tampered with and witnesses won over.
The Bench also added that; We find, that people have started feeling criminal trials are like
cobweb where small flies are getting caught and big people are dashing through.
In a severe indictment of Zaheera, whose conduct was disapproved by the court, the Bench
also directed, the income tax authorities, to forthwith; attach her property and bank accounts.
In the event Zaheera fails, to deposit the fine, the court directed a one year prison term in
default.
The case above presents a classic example of hearsay evidence and whether the statements
given outside the court can be taken in consideration or not. In this case the court having
taken in account the statements by Zaheera Seikh outside the statements has taken a decisive
action. Well now, this stands as in direct contradiction in the rule of the courts to consider
anything which is said in the court by a witness as evidence and nothing beyond it. It also
takes in view hearsay evidence and its impact on the trial.
Hearsay evidence can be primarily be understood as a statement made out of court that is
offered in court as evidence to prove the truth of the matter asserted.
It is the job of the judge or jury in a court proceeding to determine whether evidence offered
as proof is credible. Three evidentiary rules help the judge or jury make this determination:
(1) Before being allowed to testify, a witness generally must swear or affirm that his or her
testimony will be truthful.
(2) The witness must be personally present at the trial or proceeding in order to allow the
judge or jury to observe the testimony firsthand.
(3) The witness is subject to cross-examination at the option of any party who did not call the
witness to testify.
Thus in this case there were also charges of perjury on Zaheera Seikh. The case became
controversial when Zaheera Sheikh and her family admitted publicly that they had lied in the
Vadodara Sessions Court. They said that they were intimidated by Bharatiya Janata Party
MLA Madhu Shrivastav and his brother Chandu. The family appealed to the Supreme Court
for a re-trial outside Gujarat so that they would be safe to testify. But in the Mumbai hearing
too, they turned hostile.

26

This turning hostile of the witnesses on the same charges in two different high courts of the
country is a mockery of the judicial independence of a person and shows how one can easily
befool it and that the voice of a person does not hold any value. The influence of power on
the statement of the witness of a heinous crime can be seen largely. And this was written all
over the case. Even the Honble High court felt powerless and unprepared to deal with such a
phenomenon. The high court still to the best of its ability and knowledge delivered a
landmark judgement. The High court gave some reasons for the judgement which can be
cited here.
Reasons and comments of the High court:-

Mr. Sushil Kumar. Learned Senior Advocate then submitted that NHRC had
directlyapproached the Supreme Court against the impugned judgement and order passed by
theTrial Court in this case only because of media hype, though the impugned judgement
andorder of acquittal passed by the Trial Court is just, legal and proper. He had gone to
thatextent by submitting that media and some, without any basic knowledge and concept
ofCriminal Law, have almost found the accused guilty much before the state appeal filed
against the impugned judgement and order of acquittal passed by the Trial Court under
Sections 386 of the Criminal Procedure Code was even heard and decided by this High Court,
which is highly improper.
Mr. Sushil Kumar had vahemently submitted that it was unfortunate that none else but the
Chairman of NHRC who is former Chief Justice of the Supreme Court of India, severely
criticized the impugned judgement and order of acquittal passed by the learned Trial Judge.
In this case immediately after the judgement was pronounced by the learned Trial Judge,
without even looking at it he has called it miscarriage of justice. He submitted that inspired
by this, one and sundry, started to even looking at it or applying their mind and understanding
the correct position of law. He had also submitted that it was highly improper on the part of
the Chairman of the NHRC to call the judgement as miscarriage of justice, which may even
amount to contempt of the court. He had also submitted that when the Chairman of Court. He
had also submitted that when the Chairman of the NHRC realized his mistake after going
through the judgement and order of acquittal, then, only with a view to save the situation,
under the compelling circumstances, he decided to approach the Supreme Court and
27

accordingly matter was filed by NHRC before the Supreme Court and the impugned
judgement and order of acquittal passed by the learned Trial Judge has been challenged by
bypassing this High Court. He also submitted that after the Chairman of the NHRC made the
statement that the judgement and order of the learned Trial Judge amounts to miscarriage of
justice, then there was a tremendous pressure on him from media, therefore, though the
judgement and order of the learned Trial Judge was absolutely just, legal and proper and
there was no miscarriage of justice, NHRC had to approach the Supreme Court directly
against the judgement and order of acquittal passed by the Trial Court. He, therefore,
submitted that this Court may straightway dismiss the appeal and the applications filed in it
as there is no substance in any of it.
Learned Advocate General Mr. Shelat has submitted that one after other witnesses turned
hostile before the court, that was sufficient to raise a reasonable suspicion that under threat or
coercion, they had turned hostile. This submission of learned Advocate General cannot be
accepted for the simple reason that there may be more than one reasons for the witnesses
from resiling from their so called statements made before the police. It is known to everyone
that no signature of the witness is obtained below his / her statement recorded by the police
under Section 161 of the Code. Signature is obtained only on the complaint. First of all, there
is nothing to show that these witnesses had ever made their so called statements before the
police and possibility of this case cannot be ruled out. If they had not made any statement
before the Police, than, there was no question of resiling from their so called statements either
under threat or coercion. It may also be stated that in all 37 witnesses were declared hostile,
out of them seven were none else but victims and eye witnesses, three of them had received
injuries during the incident. All these 7 witnesses were from Uttar Pradesh and not knowing
Gujarati, still their so called statements are recorded by the Police in Gujarati. It is not the
case that the said statements of the witnesses recorded in Gujarati were read over and
explained to them in Hindi. The possibility of these seven witnesses telling the truth before
the Court in their evidence also cannot be ruled out because they were not only the victims
but some of them were injured and lost their near and dear ones in the incident. It was the
best opportunity for them to depose against the accused, if at all they had seen the
respondents accused taking active part in the incident with other persons of the mob of more
than 1000 to 1500 then they would have definitely identified the accused persons,who were
very much present in the court, and deposed against them because in the court there was no
threat or coercion. We are also not prepared to believe that other four eye witnesses escaped
28

unhurt without any injury on their persons when Police claimed that they were also tied and
beaten during the incident. It raises serious doubt about the investigation carried out by the
Police in this case.
We failed to appreciate the submission of learned Advocate General that neither the
Prosecutor nor the learned Judge had put any questions to the witnesses, who were not
supporting the prosecution and tried to know from them that why they were not supporting
the prosecution case. The Prosecutor is the guaroian of the society, who is concerned with
punishing the guilty and saving the innocent. He has to protect the interest of the society and
has to see that wrong doers must be punished, but at the same time, innocent persons should
not be punished wrongly. Similarly, neither the Public Prosecutor nor the learned Trial Judge
can put any leading questions to the witnesses.
Neither the prosecutor nor the learned Judge can cross their limits and become prosecutor.
Learned Advocate General then made a serious grievance that neither the Public
Prosecutor not the learned Judge had taken any care to protect witness Zahirabibi, who was to
be examined on 17.5.2003, especially when on 9.5.2003, as many as four witnesses, out of
them 7 injured persons, turned hostile. This submission has no substance. On 17.5.2003, in all
three witnesses including Zahirabibi were examined. Out of three witnesses, one was injured.
It may be stated that if they were really threatened by any one prior to the recording of their
evidence, then, they would have definitely complained about it at least to someone, but that is
not the case. As stated earlier, it was very much doubtful whether the witnesses had ever
made their statements before the Police or not? Zahirabibis statement recorded on 2.3.2002
is in Gujarati and the same was treated as FIR by the Police, therefore, her signature was
obtained below the same without reading it over and explaining the same to her in Gujarati.
Zahirabibi has simply admitted her signature below her so called complaint, but she has
clearly denied the contents of it. We are also not prepared to believe that she was threatened,
therefore, she turned hostile because she deposed before the court on 17.5.2003. Trial
continued thereafter and the learned Trial Judge pronounced the judgment only on 27.6.2003
after
more than a period of one month. It is to be noted that immediately on the next day of the
pronouncement of judgement, this witness Zahirabibi had made the statement that she was
threatened, therefore, she had turned hostile before the court. We have serious doubt about it.
29

If she can make such statement on the next day after the judgment was pronounced, then the
question is, why she had not stated so till 27.6.2003 till the judgement was pronounced?
When she turned hostile on 17.5.2003. There seems to be a definite design and conspiracy to
malign the people by misusing this witness Zahirabibi, who is hardly 19 years old. She can
easily fall in pray of anyone and play in the dirty hands of antisocial and anti-national
elements.
Conclusion:This judgement is one of the landmark judgements of the Indian judiciary. Not only it had a
heinous crime of genocide with it but also it had many issues which are always present in a
case but rarely surface like the impact of media , hearsay evidence, witnesses turning away
from their statements etc. The judiciary has tackled all the issues in an intelligible way and
paved way for future legislations

30

CONCLUSION
Concluding the two main aspects of our project dealt with- Examination in Chief and Hostile
witness.

An examination in chief must appear fresh, interesting, flowing, and conversational. This
sounds easy, but requires a lot of work, research and preparation. The importance of
Examination in Chief must never be underestimated. .A strong direct examination is an
important building block that can lead to the success at the trial. Direct examination does
not exist in a vacuum. It must be part of a coherent story told inside and outside the
courtroom.

Effective examination in chief builds on a solid case foundation, and establishes client
credibility and judge empathy. Like any performance, it requires good preparation; with
the lawyer listening to the client first and then teaching the client how best to present
himself. Then, at trial, the lawyer has to get out of the way of the relationship between the
jury and the client. Turning over responsibility to the client may seem unnatural, and is
always uncomfortable, but it is the best way to accomplish the goals of examination in
chief, and the ultimate goal of winning the case for your client. Thus the skill of
extracting information form ones own witness also requires a great amount of skill,
labour, art, hard work.
Conviction of a guilty person develops devotion and sincerity among the public. And this
development leads to good governance. But now, most criminal cases turn into hostile.
Hostility of witnesses is a menace to the society. Witnesses who support the prosecution
story during a criminal investigation do not like to turn up before a criminal court to
dispose the true story. Even if they appear in the court they do not intent to put up the true
picture of the prosecution due to fear, relations and closeness. The present judicial system
has taken the witnesses completely for granted. The country is facing problems regarding
conviction of criminals due to the unavailability of witnesses. Witnesses are still
threatened in India by the accused. It is submitted that, 'hostility', under Common Law,
was a legal measure, resorted to, when witnesses wilfully prevaricated, to help the other
31

party. However, it has been observed, that witnesses mostly turn 'hostile', on account of
"hostile animus" exhibited by the criminal justice system towards them. It is felt that,
'hostility', under such circumstances, conceptually differs from what the Common Law
had envisaged.

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ANNEXURE
Prosecution Story
It's a very clear case, of murder, and grievous hurt, as the weapon used were of a sharp nature
like a knife to stab the deceased Mr. Kumar, and then fled the crime scene, only for Mohit to
see her hiding the weapon and looking suspicious. The neighbours have been a testament of
continuous feuds relating to extra marital affairs, the neighbours had even complained about
violence occurring between them where Mrs Kumar assaulted Mr Kumar. Forensic tests also
prove the Fingerprints on the weapon used are of Mrs Kumar, along with a part of her
clothing on which blood stains were found. She had a wound in her hand along with
statements of the main witness, Mohit. All of this thus, makes us very sure of the offence of
murder being committed by Mrs Kumar.

Accused Story
The prosecution story has no base as even though there used to be feuds between the accused
and the deceased on the subject of extra marital affair, does not necessarily mean murder was
committed by her, and since the accused was housewife, she often used kitchen knife to make
food, and unfortunately on the same day she being distracted by the feud, injured herself by
the knife which also defies the theory of her fingerprints being on the knife and covered the
wound by a piece of clothing which the prosecution uses as evidence taken from the crime
scene, thus the death of the deceased had nothing to do with the actions of the accused Mrs
Kumar.
Now, the prime witness Mohit has turned hostile From the examination of chief and denies
the fact that he saw her get out of the building.

33

QUESTIONS FOR EXAMINATION IN CHIEF by Adv. Adarsh Himatsinghka

1. What is your name?
2. What is your age?
3. What is your profession?
4. Where is your office?
5. Where do you live?
6. Do you know why you have come here?
7. What were you doing on the night of the murder?
8. What time did you leave?
9. Did you see anything when you were leaving?
10. When did you return?
11. Did you see anything when you returned?
12. What was she doing?
13. What happened after that?
14. Did you know where she went?
15. What did you do after you saw her leave?
16. Did you inform anyone about the incident?
17. To whom did you inform?
18. When did you inform?

EXAMINATION

IN

CHIEF

OF

THE

WITNESS

34

I, Mr. Mohit Jain, age 20 years, Student at Mokandlal College of Commerce,

Mumbai., the witness in the above matter do herby state on solemn affirmation as
under: -

I Mohit Jain, live at 1/12, Manoj Apartments, Veer Tara Rd., Mumbai. I am presently a
student at the Mokandlal College of Commerce, Mumbai. I am here because I have been
summoned here as a witness for the murder of Mr Kumar.

On 21/02/15, around 11 PM in the night, I was getting ready for a friends birthday party. As
soon as I went to my balcony to grab a shirt, I heard someone shouting in the next wing. Then
I realised, it must be Mr and Mrs Kumar. This was quite usual; anyone living in Wing A could
hear Mr and Mrs Kumar fighting. Everyone was quite used to it by now, so without paying
any attention, I came back inside. I left for my friends place around 12 PM. While I was
leaving, I saw Mr Kumar leaving the building.
I came back around 3 PM. It was dark and I was walking towards my building when I saw
Mrs Kumar rushing out from her building. She was sweating, and she looked a little
suspicious as something had fallen from her purse. She looked around and picked up what
had fallen from the purse, wrapped it in a white cloth stained with blood and rushed towards
her car. Till the time she picked it up I had come a little closer and saw what had fallen from
her purse was a knife. I had no idea where she was going as I did not interact with her in any
way. After she left, I went home. The following morning, I informed about the incident to my
mother.
Prosecution rests its case.

35

Questions for cross examination by Adv. Arnav Das

1. Which friends place did you leave for?
2. What time did you leave for your friends place?
3. Did you see anyone while leaving for the party?
4. What time did you come back?
5. Were you alone then or had company?
6. What did you see when you returned?
7. What was her conduct?
8. How well did you know Mrs. Kumar?
9. So you did not know her personally?
10. Then in that case you might have been mistaken if it was her?
11. Were you able to notice her sweating and panicked look even at 3 AM in the night?
12. What happened after that?
13. Were you intoxicated at the time when you returned?
14. Is there a possibility you were under the influence of alcohol and hallucinating what
you saw?
15. So you are sure it was a knife?
The witness has Turned Hostile and cross examination continued by Adv. Adarsh
Himatsinghka under Section 154:16. When I asked previously, you said there was a knife which fell, were you confused?
17. Why didnt you tell the court you were intoxicated?

36

Statements
I, left for Arjuns place for his birthday party. I left around 12:30 AM. While I was leaving
then I saw Mr. Kumar leave his building and walk towards the car parking. I came back
around 3 AM. No, I did not have any company and I was alone. I saw Mrs. Kumar going
towards the car parking area. Her conduct was unusual; she was sweating and looked
panicked. I had seen her couple of times in building get-togethers. No, I did not know her
personally. Yes, theres a possibility that I might have mistaken her for someone else. Now
that I think of it practically, it was too dark for me to notice the details on her face and
conduct. I saw her drop the knife covered in white handkerchief. You can say, but I only had
two beers then which doesnt affect my sanity. I cannot be sure of what I saw and might have
been intoxicated and not know. No, Im not sure. (Turns Hostile)
The chief examiner will now object to the judge that his witness has turned hostile.
Yes, I got confused, it was dark and I am not sure it was a knife. I panicked, hence fumbled,
and did not think that a couple of beers would affect my credibility as a witness.

Judgement regarding the admissibility of the statements given by

the Hostile witness.
The adverse party now supports their argument with the case of State of U.P. v. Ramesh
Prasad Misra1, where it was held by the Supreme Court that:
It is equally settled law that the evidence of a hostile witness would not be totally rejected if
spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny
and that portion of the evidence which is consistent with the case of the prosecution or
defence may be accepted.
Thus, in this case, the adverse party wants to admit certain statements made by the witness in
the cross examination under S. 154 of the Evidence Act, 1872 wherein the witness spoke
1 (1996) 10 SCC 360
37

about him having two beers after the party which made his earlier statement of having seen
the knife fall from Mrs Kumars purse dubious. The witness also in his statements mentioned
the time of the incident which was supposedly 3 AM, which creates a doubt in the judges
mind if his statement can be relied upon.

38

REFERENCES AND BIBLIOGRAPHY

BOOKS:

Blacks Law Dictionary (9th Standard edition).

All India Reporter (AIR).
Bluebook (19thEd.) Citation method.
The Indian Evidence Act, 1872 by C.K. Takwani, Eastern Book

Company.
Indian Evidence Bare Act, Universal Publication.

ONLINE ARTICLES AND JOURNALS:

http://dictionary.law.com/Default.aspx?selected=408
http://www.merriam-webster.com/dictionary/cross
%E2%80%93examination
http://publicdefender.mt.gov/training/PracticeManual-Criminal/Ch9CrossExam.pdf
https://blog.ceb.com/2011/10/17/mastering-the-art-of-cross-examination/
www.nhtsa.gov/staticfiles/nti/pdf/811671.pdf
http://legalsolutions.thomsonreuters.com/lawproducts/Treatises/Excellence-in-Cross-Examination/p/100099164

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