Section 138 of the Indian Evidence Act, 1872

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to 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 is, by permission of the Court, introduced in re-examination, the adverse party may further cross- examine upon that matter.

Comments:

Section 138 lays down the manner of examining a particular witness and creates distinct rights, viz. examination-in-chief, cross-examination and re-examination so far as examination of witness is concerned. The examination-in-chief, cross- examination, and re-examination must relate to relevant facts.

There can be any cross-examination without the foundation of examination-in-chief. When accused declined to cross-examine the witness and thereafter the said witness is not availed for cross-examination, the evidence of such witness recorded is admissible in evidence but that will have to be true to that account.

Object of examination-in-chief:

The object of examination-in-chief is to be confined to the fact in issue or facts relevant to the fact in issue. The witness is not allowed to state to his personal opinion upon question of facts when he is under examination-in-chief. No leading question is ordinarily allowed to impeach the credit of witness except the consent is given by the court.

Object of cross-examination:

The cross-examination follows just after the examination-in-chief unless the court thinks otherwise. A wide discretion is given to the opponent to cross-examine the witness. Where the accused was denied opportunity or cross-examining the witness it was held that it caused serious prejudice to the accused and the whole proceedings stood vitiated. Cross-examination of witness need not be confined to facts stated in examination-in-chief. “Matter of cross-examination is not mere empty formality, but one is required to put its own case in cross-examination, otherwise a revision of the witness has to be taken as unchallenged.” But the court must also ensure that cross-examination is not mode of harassment or causing humiliation to the victim of crime. Recalling of witness for further cross-examination already cross-examination cannot be permitted merely on change of council with purpose to fill up lacunae left in case. In cross-examination the leading questions may in general be asked, but this does not mean that “counsel may to the length of put every word into mouth of the witness.”

Questions contrary to fact are not allowed:

A witness called by the court is liable to be cross-examined by any of the parties. The complainant and not the accused has a right to examine a court’s witness summoned at the stage of taking cognizance under section 190 of Cr. PC.

Object of Re-examination:

The right to re-examine of the witness takes place after conclusion of cross-examination. If there are discrepancies in statements between examination-in-chief and cross-examination or to remove any ambiguity in the deposition cast on the evidence by cross-examination, the party of examination-in-chief may be allowed to re-examine its own witness. Similarly the adverse party has also right to re-cross-examination. “Re-examination can travel beyond examination-in-chief and cross-examination, but with the permission of the court.” The permission of the court is required only when a new fact is sought to be introduced in re-examination. The court is generally liberal to granting such permission so long as at least the questioning remains within the range of facts.