Witnesses to be examined as produced
The Criminal Procedure Code, 1973 (CrPC), in its Section 230, states that in a Sessions trial, the Sessions Judge shall proceed to take all such evidence on the date so fixed for prosecution, as may be produced in support of the prosecution (see Section 231(1) CrPC).
The evidence, specified above, includes both statements (oral evidence) and documents (documentary evidence). They are,
- all statements which the court permits or required to be made before it by witnesses relevant to the fact under inquiry.
- All documents produced for inspection of the court.
Examination in chief, cross examination & re-examination
During the examination the witness shall be first examined in chief, then cross examined by the adverse party if he desires, and then re-examined by the party calling him [Section 138, of the Indian Evidence Act, 1872 (IEA)].
The witness examination starts with examination of prosecution witnesses. When the prosecution witness is examined in chief by the prosecutor, it will be followed by the cross examination by the defence counsel and the witness shall be re-examined by the prosecutor once again.
Once examination is started the court has to continue the trial on day-to-day basis until all witnesses have been examined. The court has to record reasons for deviating from such a plan, if there is a deviation.
Order of examination of witnesses
In criminal cases, the order of examination of witnesses must be according to the law or practice in force. This is what the CrPC says.
The prosecution shall decide the manner and order in which the witnesses are to be examined. So, the evidence is taken in the order in which it is produced by the prosecutor and seldom the court interferes with this order. The choice of the prosecutor of the order of production of witnesses cannot be interfered by the court.
The prosecutor should, as far as possible, examine the witnesses so as to bring out the facts of the case in their logical order. Expert witnesses such as medical witnesses should not be examined at an early stage when it is impossible to realise on what points their opinion is necessary.
It is the privilege of the examiner of the witness to determine the order in which the witnesses should be examined. The court has the power to enforce the order. This is because the entire brunt of proving a criminal case solely falls on the prosecutor.
Whom the prosecution shall bring
The prosecution must examine all material witnesses essential to unfold the narrative on which the prosecution bases its case, even though the testimony of the witness may be for or against the prosecution case.
The prosecutor must produce evidence under his power, keeping the charge in mind and call those witnesses who must be able to give important information. All those who speak the truth should be called irrespective of whether he supports the prosecution or not. The only criterion to be kept in mind is that he should tell the court the truth and truth alone.
The prosecutor should not pick and choose his witnesses. The prosecution can drop any cited witness. If prosecution drops a witness the defence counsel can examine him as a defence witness. In a contested case, non-examination of investigation officer and closure of the case is not a proper course.
The witnesses where statements have not been recorded under section 161 CrPC can also be examined. The words to take all such evidence indicate this. But the prosecution is not bound to call and examine all those who were present at the time of the occurrence. If enough number of witnesses are examined and their evidence is reliable and sufficient to convict the accused, the prosecution may refrain from examining the remaining ones. But the non-examination any witness must be reasonable.
Prosecution must bring in every truth
If any of the witnesses is won over by the accused and is not likely to state the truth, the prosecution would have a valid ground for not examining him in court. However, the prosecution would not be justified in not examining a witness on the ground that his evidence though not untrue would go in a favour of the accused. It is the duty of the prosecution and the court that full material facts are brought on the record so as to avoid any miscarriage of justice.
The court can summon a prosecution witness who might give evidence in favour of the accused. In such a situation the prosecution should cull out information from him by cross examination.
In case the court finds that the prosecution had not examined witnesses for reasons not proper or tenable the court can draw adverse inference under Section 114 of the IEA. But if a witness is not in favour of the prosecution the court should not insist on the prosecutor to examine such witnesses for prosecution.
Judge can defer cross examination
The judge in his discretion can permit the cross examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross examination (Section 231(2), CrPC).
The accused has no right to claim the postponement of cross examination of a prosecution witness until any other witness has been examined as a matter of right. The discretion to defer the cross examination lies with the court.
Defence evidence
If the accused is not discharged Under Section 232CrPC, he shall be called upon to enter on his defence and adduce evidence he may have in his support.
If the accused applies for the issue of any process for compelling attendance of any witness or the production of any document or thing, the judge shall issue such process. However, the judge can refuse it in case it is for any vexatious purpose or for delaying the trial or for defeating the ends of justice somehow (Section 233 (3) CrPC).
The accused himself is a competent witness and the accused can give evidence on oath (Section 315 CrPC). After recalling a witness, the court cannot disallow confrontation of him by the accused.
In conclusion
In short, it is the prosecutor who decides the order of the examination of the prosecution witnesses in normal course. The defence counsel has no say in the matter. But in case something goes shady the court can step in and decide how it should be.
