Assignment topic: Discuss examination of witness under the purview of legal

provisions of Bangladesh.

Submitted by: Sayma Jaman.

ID: 22307016.

Session: Summer 2024.

Course name: Evidence II.

Course code: Law 324.

Submitted to: Mahbub Rahman.

Faculty of Department of Law.

Canadian University of Bangladesh.

Examination of witnesses under the purview of legal provisions in Bangladesh:

The examination of witnesses is a critical process in legal proceedings where attorneys question
witnesses to obtain relevant information that supports their arguments.

Examination of witnesses in law refers to the process of questioning witnesses during a trial or
legal proceeding to gather evidence. Overall, the examination of witnesses is crucial for
presenting evidence and establishing facts in a legal proceeding.

In adversary system, one of the basic rules is that it is the party who defines the issues in the
case, find the evidence and present the evidence to an essentially passive adjudicative court. This
system witnesses are called by one side or the other because they are expected, in the normal
course of events, to testify in support of the version of the facts put forward by the party calling
them.

Section 136-166 of evidence act 1872, deals with the matters of examination of witness in civil
or criminal trials.

In regards, section 138 of the evidence act specifies, three types of examination:

(i) Examination in chief;

(ii) Cross examination; and

(iii) Re-examination.

Section 136:

Section 136 specifies that 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
of a witness, therefore, generally consists of three stages:

(a) The witness is first examined by the party who calls him; this is called direct examination or
examination-in-chief.

(b) He is next examined by the adverse party; this is called cross-examination. (c) The party
calling the witness may then re-examine the witness.

Essentially, Section 136 serves as a "gatekeeper" provision, giving judges the authority to filter
out evidence that doesn't directly pertain to the facts at issue, which helps streamline the trial and
focuses on the most pertinent information.
Section 137 (Examination in chief):

Section 137 specifies that the examination of a witness by the party who calls him shall be called
his examination-in-chief. This is also called direct examination. The testimony of weakness is
recorded in the form of answers to questions put to him. Witnesses are not permitted to deliver a
speech in the court.

There are two specific purposes of examination in chief:

(i) To lay before the court relevant and material fact that your witness knows (show your case
theory);

(ii) To protect witness from attack in cross examination. To insulate him as much as possible, in
cross-examination.

Cross-examination:

Section 137 specifies that the examination of a witness by the adverse party shall be called his
cross-examination. Cross-examination of witness is an essential feature of adversarial procedure
and "a powerful weapon for the purpose of testing the veracity of a witness and the accuracy and
completeness of the story'". Section 143 specifies that leading question may be asked during
cross- examination.

There are three purposes of a cross-examination:

(i) To destroy our weekend the evidence of your opponents witness or to undermine their
credibility;

(ii) To elicit favorable testimony;

(iii) To put your own case ( mandatory). To establish the parties own case by means of his
opponents witness.

Approach to cross-examination:

(i) The Goods-Train approach.

(ii) Wagon by Wagon approach.

(iii) Objective by Objective approach.

In Gopal Saran v. Satyanarayan,it was held that party is not subjecting to cross-examination in
spite of order of Court. It is not safe to rely on examination-in-chief1.

In case of Abuthagir v. State Rep. by Inspector of Police, Madurai, it was held that delay in
plausible explanation for delay in examination of witness was not ground to doubt the veracity of
prosecution case2.

Differences between Examination-in-chief and Cross-Examination:

Cross-examination differs from examination-in-chief in two major respects. The first relates to
the manner of questioning. In cross-examination, leading question is permissible whereas in
examination-in-chief leading questions are not permitted.

Secondly, in examination-in-chief all questions to witness must, as ever, be relevant to an issue

in the case. On the other hand, in the case of cross-examination the lawyer needs not be confined
to the facts to which the witness testified on his examination-in-chief. Cross-examination is
dependent on examination-in-chief.

In other words, there cannot be any cross-examination without the foundation of examination-in-
chief. Where the witness, who lodged the FIR with some delay, was asked no questions in cross-
examination to elicit any explanation about the delay, it was held that the evidence of the FIR
remained unchallenged and, therefore, could not be believed to be true. ( State of Uttar Pradesh
vs. Nahar Singh (1998) 3 SSC 561)3.

Re-examination:

The party calling a witness has a right to re-examine the witness after he or she has been cross-
examined. The object of re-examination is to afford the party calling a witness opportunity for
filling in the lacuna or explaining the inconsistencies which the cross-examination has
discovered in the examination-in-chief of the witness. It is accordingly limited to the explanation
of matters referred to in cross-examination (s. 138). New facts cannot be introduced in re-
examination without the permission of the court. If such permission is granted, the adverse party
has a right of further cross-examination on that point. As in examination-in-chief, leading
questions cannot be asked in reexamination (s. 142)4.

1
https://taxguru.in/custom-duty/evidence-unavailable-cross-examination-treated-
admissible.html#google_vignette
2
https://www.the-laws.com/Encyclopedia/browse/Case?caseId=009002749000&title=abuthagir-vs-state
3
https://updates.manupatra.com/roundup/contentsummary.aspx?iid=37438
4
https://www.mondaq.com/india/trials-amp-appeals-amp-compensation/1119500/re-examination-of-a-witness-
the-notion-its-necessity
There are three purposes of Re-examination:

(i) Salvage: This is to rehabilitate the witnesses.

(ii) Clarification: This is just to restore order and tidiness.

(iii) Massacre: If open lawyer did open the door, opened a can of worms, now is the time to
spread the warm all over the place.

Importance of Examination of Witnesses:

In court proceedings, witness examination is required for a number of significant reasons:

1) Establishing Facts: Firsthand recollections and factual information from witnesses aid the
court in comprehending what transpired. Events, deeds, and observations pertinent to the case are
supported by their testimony.

2) Evaluating trustworthiness: By questioning witnesses, both parties can assess each one's
dependability and trustworthiness. To ensure that the court can believe the information offered,
cross-examination is a particularly effective method for challenging biases, contradictions, or
inaccuracies.

3) Clarifying and Explaining Evidence: When it comes to written or tangible evidence, witnesses
frequently offer background information and justifications. They can assist in elucidating certain
incidents or technical aspects, which can help the jury and judge better comprehend and access
complex material.

4) Uncovering the Truth: The process of direct and cross-examination encourages witnesses to
provide truthful information, as they know their statements will be scrutinized by both sides.
This back-and-forth examination helps the court uncover inconsistencies or exaggerations,
bringing the truth closer to light5.

5) Ensuring Fairness: The examination of witnesses gives both the defense and prosecution an
equal opportunity to present and challenge evidence, promoting fairness in the trial. Each side
can question the same witness, helping to balance the narrative and allowing the judge or jury to
hear multiple perspectives on the same facts.

In sum, examining witnesses is central to establishing the facts of the case, assessing the
reliability of evidence, and ultimately guiding the court in reaching a fair and just verdict 6.

The Code of Criminal Procedure, 1898 (CrPC)

5
https://www.casemine.com/judgement/in/63adab04cb48997fa5a4b541
6
https://www.drishtijudiciary.com/landmark-judgement/code-of-criminal-procedure/zahira-habibulla-h-shiekh-v-
state-of-gujarat-2004-4-scc-158
• Witness Summoning (Sections 160-174): This segment of the CrPC provides rules for
summoning witnesses and examining them in criminal cases.

• Examination during Trial (Section 244, Section 256, and Section 265): These sections mandate
the examination of witnesses in different stages of criminal trials, depending on whether the trial
is in a Magistrate’s Court or Sessions Court.

• Protection and Compellability of Witnesses (Section 342): This section provides guidelines for
recording witness statements and protecting witnesses from self-incrimination.

• Dying Declarations (Section 32 of the Evidence Act): Statements made by witnesses in fear of
imminent death, known as “dying declarations,” are admissible as evidence under specific
circumstances.

3. The Code of Civil Procedure, 1908 (CPC)

• Summoning of Witnesses (Order XVI): In civil cases, the CPC specifies the procedure for
summoning witnesses and the penalties for failing to comply.

• Recording of Evidence (Order XVIII): This order lays out how evidence, including witness
testimonies, is to be recorded during civil proceedings.

4. Other Legal Provisions:

Protection of Vulnerable Witnesses: Although not explicitly outlined in older legislation, modern
amendments and interpretations by Bangladeshi courts often recognize the need to protect
vulnerable witnesses (such as minors and victims of sexual violence) from intimidation and
trauma.

Practical Application in Bangladesh:

In practice, these provisions are designed to ensure a fair process by allowing each side to
examine witnesses while providing mechanisms to protect witness credibility and prevent
intimidation. The judiciary also has the discretion to control proceedings to avoid excessive
harassment or irrelevant questioning7.

Understanding and effectively applying these legal provisions is crucial for legal practitioners in
Bangladesh, as it ensures witness examination is conducted within the bounds of fairness,
relevance and accuracy.

7
https://supremecourt.gov.bd/translation/process.php?file=1827609_CivilRevisionNo.173of2020.pdf
The evidence act 1872 is very necessary for protecting the witnesses, letting him speak freely
without the fear of prosecution. Interpretation have brought significant positive changes in this
act to meet the needs of the time and have made some provisions more practical