The Power of the Witness Box

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) recasts India’s law of proof, tightening how facts are received and tested in court. Its framework for examining witnesses, chief, cross and re-examination, prioritises relevance, calibrated use of leading questions and robust impeachment and corroboration tools while preserving the judge’s role. It clarifies the treatment of statements and documents, protects victims from character based attacks in consent cases and balances efficiency with fairness. Alongside, the provisions on improper admission or rejection of evidence adopts a pragmatic test, i.e., decisions stand if supported independently or if the excluded material would not have changed the result. Together, these provisions aim to streamline trials without diluting due process.

How is the order in which witnesses are produced and examined determined?

The order of producing and examining witnesses is regulated by the law and practice relating to civil and criminal procedure. If there is no such law, it is decided by the discretion of the Court.

What may a Judge ask when a party proposes to give evidence of a fact?

The Judge may ask how the alleged fact, if proved, would be relevant.

When will the Judge admit the proposed evidence?

The Judge will admit the evidence only if he considers that the fact, if proved, would be relevant.

What must happen if a fact is admissible only upon the proof of another fact?

The foundational fact must be proved first unless the party undertakes to prove it and the Court accepts that undertaking.

What if relevancy of one fact depends on another fact being proved first?

The Judge may allow the first fact to be proved before the second or may insist that the second fact be proved first.

In proving statements by a deceased person, what must be proved first?

It must first be proved that the person is dead.

What must be shown before producing a copy of a lost document?

It must be shown that the original is lost.

When proving denial of possession of stolen property, what may the Court require?

The Court may require the property to be identified before proving the denial, or allow the denial to be proved first.

When proving that a fact is a cause or effect of a fact in issue, how may the Court proceed regarding intermediate facts?

The Court may either require the intermediate facts to be proved first or allow proof of the main fact before intermediate facts.

What is examination-in-chief?

Examination of a witness by the party who calls him.

What is cross-examination?

Examination by the adverse party.

What is re-examination?

Examination after cross-examination by the party who called the witness.

In what sequence are witnesses examined?

First examination-in-chief, then cross-examination, then re-examination.

To what must examination-in-chief and cross-examination relate?

They must relate to relevant facts, but cross-examination need not be confined to facts stated in examination-in-chief.

What is the scope of re-examination?

It must address matters raised in cross-examination, if new matters are introduced with permission, the adverse party may further cross-examine on those matters.

Does a person called only to produce a document become a witness?

No. He cannot be cross-examined unless he is called as a witness.

Can witnesses to character be cross-examined and re-examined?

Yes.

What is a leading question?

A question that suggests the answer the questioner wants or expects.

When are leading questions prohibited?

During examination-in-chief or re-examination if the adverse party objects, unless the Court permits.

When must the Court allow leading questions?

On introductory or undisputed matters, or those already proved.

When may leading questions be asked freely?

In cross-examination.

What may a witness be asked about contracts or dispositions of property?

Whether they were contained in a document.

What if the witness starts to speak about document contents?

The adverse party may object until the document is produced or secondary evidence is justified.

When may a witness give oral evidence about statements regarding document contents?

If such statements themselves are relevant facts.

Can a witness be cross-examined on previous written statements?

Yes, without showing the writing.

When must his attention be drawn to parts of the writing?

When it is intended to contradict him with that writing.

What types of questions may be asked in cross-examination besides those already permitted?

Questions to test veracity, discover identity or social position, shake credit by injuring character even if answers incriminate the witness.

What restriction applies in cases involving consent in certain offences?

Evidence or questions about the victim’s general immoral character or previous sexual experience cannot be used to prove consent.

When must a witness answer a question affecting a relevant matter?

When the question relates to a matter relevant to the case.

When does the Court decide whether a witness must answer a question unrelated to the case but affecting credibility?

When such a question injures character but is not relevant to the case itself.

What factors will the Court consider?

(a)
Whether the truth would seriously affect credibility.

(b)
Whether the imputation is too remote.

(c)
Whether the imputation is disproportionate to the value of the evidence.

(d)
Whether refusal to answer permits an adverse inference.

When may a question affecting character be asked?

Only if the questioner has reasonable grounds for believing the imputation to be well-founded. Random accusations without basis cannot be asked.

What may the Court do if such a question was asked by an advocate without reasonable grounds?

Report the matter to the High Court or relevant authority.

When may the Court forbid indecent or scandalous questions?

Whenever they are not necessary to establish a fact in issue or a matter essential to determine such facts.

When must the Court forbid a question?

When it is intended to insult or annoy or is needlessly offensive.

Can a witness’s answer to a question affecting only his character be contradicted?

No, except for two exceptions.

What are the exceptions?

(a)
Previous convictions may be proved if denied.

(b)
Facts impeaching impartiality may be contradicted.

When may a party ask questions to its own witness as in cross-examination?

When permitted by the Court.

Can the party still rely on parts of such witness’s testimony?

Yes.

How may the credit of a witness be impeached?

(a)
By testimony about his untrustworthiness.

(b)
By proof of bribery or corrupt inducement.

(c)
By proof of inconsistent former statements.

Can a witness explaining why he considers another unworthy of credit be contradicted?

No, but he may be prosecuted for false evidence if his answers are false.

When may a witness be asked about other circumstances to corroborate a relevant fact?

When the Court finds such circumstances would support his testimony.

When can a witness’s former statements be proved for corroboration?

If made at or near the time of the fact, or before an authority legally empowered to investigate.

What may be proved when a statement relevant under dying declarations or similar provisions is proved?

Any matter that could be used to contradict or corroborate the maker of the statement, or affect his credit, as if he were a witness.

When may a witness refresh memory with a writing?

(a)
If he wrote it at the time of the transaction or soon after.

(b)
If written by someone else but read by him then, knowing it was correct.

May a witness refresh memory using a copy?

Yes, with the Court’s permission and sufficient reason for non-production of the original.

May experts refresh memory using professional treatises?

Yes.

Can a witness testify to facts in such documents even without recollection?

Yes, if he is sure the documents accurately recorded the facts.

What are the rights of the adverse party?

They may inspect the writing and cross-examine the witness on it.

What must a witness summoned to produce a document do?

Bring it to Court, despite objections.

How are objections to production handled?

The Court decides validity of objections.

May the Court inspect the document?

Yes, unless it concerns matters of State.

May the Court order translation of documents?

Yes, and may direct secrecy. Violation amounts to an offence.

What communication cannot be compelled?

Communications between Ministers and the President.

If a party calls for a document and inspects it, must he use it?

Yes, if the producing party insists.

Can a party later use a document he refused to produce?

No, unless the other party consents or Court permits.

What may a Judge do to obtain proof of relevant facts?

(a)
Ask any question, in any form, at any time, to any witness or party.

(b)
Order production of any document or thing.

Can parties object?

No, unless the Court’s consent is sought.

On what must judgment be based?

Only on relevant and duly proved facts.

What limits apply to Judge’s powers?

(a)
Cannot compel answers or production where witness has a legal right to refuse.

(b)
Cannot ask improper questions.

(c)
Cannot dispense with primary evidence except as allowed.

Is improper admission or rejection of evidence a ground for new trial or reversal?

No, if the Court finds:

(a)
The properly admitted evidence was sufficient, or

(b)
The rejected evidence would not have changed the decision.

What statute is repealed by BSA?

The Indian Evidence Act, 1872 has been repealed.

What happens to pending proceedings?

Any application, trial, inquiry, investigation, proceeding or appeal pending before commencement of the BSA will continue under the old law as if the new one had not come into force.

Therefore, by unifying clear witness examination norms with a restrained doctrine on evidentiary errors, the BSA shifts focus from technical skirmishes to truth finding. Judges are empowered to direct inquiry, parties are steered toward relevant, reliable proof and trials gain predictability with fewer retrials on mere technicalities. The net effect is sharper courtroom practice, stronger records, fairer evaluations of credibility and judgments that rest on substance rather than procedural missteps.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.