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Role Of A Defence Lawyer During Examination-In-Chief

Adv. Vijay Aggarwal & Mudit Jain
1 Jun 2020 12:10 PM GMT
Role Of A Defence Lawyer During Examination-In-Chief
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At the outset, it is stated that the role of a defence lawyer during examination-in-chief is the most ignored strategical aspect of defending an accused in a criminal trial and there are no books on this strategical aspect of law. So much so that even a google search does not yield any effective result.

Keeping that in mind, the present article focuses to shed light on the said strategical aspect of a criminal trial.

Role of a Defence Lawyer, while examination-in-chief is going on, is that of a fielder in a Cricket Match:

In Cricket, there are three very aspects, that is, batting, bowling and fielding; and they say that good fielding wins matches for the team.

In the context of a criminal trial, figuratively speaking, the role of a defence lawyer while examination-in-chief (Section 137 of the Indian Evidence Act) is going on is that of a fielder or a wicketkeeper, with the Batting being done by the Prosecution. And once you know the nuances of law, you can be a Jonty Rhodes!

What is examination-in-chief:

Section 137 of the Indian Evidence Act 1872 (in short "IEA") states that the examination-in-chief "is the examination of a witness by the party who calls him".

In a criminal trial instituted by the State, the examination-in-chief is conducted by the Ld. Public Prosecutor (or the Ld. Special Public Prosecutor, as the case may be), who is to establish the case by asking questions from the witness and permitting the witness the answer to the same.

Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question (See: Section 141 IEA) and Section 142 IEA provides that "Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a reexamination, except with the permission of the Court"

The purpose of this exercise is to enable the prosecution to elicit material and relevant facts from the witness, to establish the case set-up against the Accused. These form the foundation of facts that the defence has to shake.

Hence, ensuring a properly conducted examination in chief is key to a fair trial and for the same, the role of the defence lawyer is of extreme importance.

Defence Lawyer should not a mere spectator but an active participant during the examination-in-chief:

Considering the importance of the examination-in-chief, it is crucial that a Defence Lawyer is not a mere spectator during the examination-in-chief and it is important that the Defence Lawyer is vigilant and carefully watches the entire examination-in-chief, so as to ensure that no legally impermissible evidence comes on record.

It is the duty of the Defence Lawyer to raise legal objections regarding the impermissibility of the evidence led by the Prosecutor during examination-in-chief.

Carry a Check-list:

Whenever a Defence Lawyer is to attend a matter in which examination-in-chief is to be recorded, the Lawyer should carry a check-list to the Court to see whether the evidence being given by the witness falls under any of the categories mentioned therein and in case it is so, should take the required course of action.

Sample check-list is as under:

S. No.

Role of Defence Lawyer

Status

Role of ensuring that accurate language is used in the recorded evidence (S. 277 (2) Cr.P.C.)

Defence Lawyer is also to ensure that anything favourable to the Accused stated by the witness is not omitted to be recorded

To notice the body language of a witness

Request the Court to record the demeanour of a witness (S. 280 Cr.P.C.)

Objection to examining by prosecution of an irrelevant witness (S. 136 IEA)

Objection to proof of proposed fact before proving other fact, upon proof of which only is the former fact admissible (S. 136 2nd Para IEA)

Objection to asking of a Leading Question (S. 142 IEA)

Objection to Hearsay Evidence (S. 60 IEA)

Objection to exhibition of:

  • Photocopy Documents (S. 65 IEA) or
  • Electronic Evidence (S. 65B IEA) or
  • Bank Account Statements (S. 2A Bankers' Book Evidence Act)

Objection to the Exhibition of document on the Mode of Proof thereof

Objection to giving evidence contrary to a written document (S. 91 and 92 IEA)

Objections to the Opinion by a non-expert Witness (S. 45 IEA)

Objection to the witness deposing about aspects of which the Court can take Judicial Notice (S. 56 IEA)

Objections to the exhibition of the entire Disclosure Statements of the Accused by the Prosecution (S. 27 IEA)

Contesting the attempt of the prosecution to declare a witness as Hostile (S. 154 IEA)

Objection to the proof of Statement recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1973 (S. 162 Cr.P.C.)

Objection to the Exhibition of a letter written by a witness to the Investigating Officer (S. 162 Cr.P.C.)

Role of the Defence Lawyer during examination-in-chief:

Role of ensuring that accurate language is used in the recorded evidence:

There are various cases in which the evidence given by the witness is dictated by the Court itself; however, in various Criminal Courts in India, evidence is recorded simultaneously in more than one matter and / or there are situations wherein, while the evidence is recorded in a matter, the Court is simultaneously taking up other matters (including hearing arguments in the said matter). It so, thus, happens that the evidence is dictated by the Ld. Public Prosecutor for recording.

Many a times, the evidence is given by the witness in a vernacular language, however, the evidence is recorded after translating the same into the language of the Court (say, English).

Thus, it is the most important role of the defence lawyer that what has been stated by the witness is accurately recorded, also in the exact sense in which the same is stated, so that when the same is subsequently referred to at the final arguments or at the Appellate Stage, the exact same sense comes out. (In case need be, the Defence Lawyer can also request the Court to record within brackets the exact vernacular language used, in order to subsequently have the exact sense of the manner in which the evidence is recorded)

Remember, the use of 'wordings' in evidence can change the entire sense of the sentence / evidence. For eg., use of a simple word "thus" or "accordingly" in a sentence can give a sense of connectivity between two aspects, which, though may not be the case.

Defence Lawyer is also to ensure that anything favourable to the Accused stated by the witness is not omitted to be recorded:

The Defence Lawyer is also to ensure that anything favourable to the Accused stated by the witness is not omitted to be recorded in evidence and in case the same is missed, the Defence Lawyer should insist on the recording of the same. For eg., omission to record the words "May be" or "I suppose", which would show that the evidence is not certain in nature.

To notice the body language of a witness:

For a successful cross-examination, a Defence Lawyer is also required to notice the body language of the witness, in order to gauge the witness.

This is essential for the Defence Lawyer to mould his manner of cross-examination according to the witness. A Defence Lawyer cannot adopt the very same body language towards each witness and has to modify himself.

Here, thus, the understanding of human nature becomes very important for a Defence Lawyer. For eg.: By understanding the nature of the witness in the movie Few Good Men, the lawyer was able to get the truth out.

Request the Court to record the demeanour of a witness:

A defence lawyer must also request the Court to record the demeanour of a witness, in terms of Section 280 Cr.P.C.

The same is essential, as in majority of criminal cases, the evidence is recorded by one Presiding Officer but the same is finally heard by another Presiding Officer, who has not seen the actual recording of the evidence.

Thus, the recording of the demeanour of the witness helps the Court to appreciate the evidence better.

Similarly, the superior courts, who would be presented with only the written evidence, would also be benefitted in case the demeanour of the witness is duly recorded by the Trial Court.

Objection to examining by prosecution of an irrelevant witness:

A witness, for being examined in a matter, ought to depose on relevant facts to the trial. In case the prosecution proposes to examine an irrelevant witness, which does not pertain to the charges framed by the Court (i.e., relating to facts in issue and relevant facts), the Defence Lawyer ought to object under Section 5 r/w s. 136 IEA to the recording of his evidence and must insist that his objection is recorded.

An example can be a witness who is sought to be examined to prove aspects which are beyond the period of charges framed or who, though was examined by the Investigating Agency on an aspect, but subsequently, the charges were not framed by the Court on the said aspect.

Objection to proof of proposed fact before proving other fact, upon proof of which only is the former fact admissible:

The Defence Lawyer can also object if the prosecution attempts to proof a fact, proof of which is dependent upon proof of some other fact. Such an objection has to be raised in terms of S. 136 2nd Para IEA.

The relevant portion of the said section is as under:

"136. Judge to decide as to admissibility of evidence —

… … … …

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

… … … …"

Objection to asking of a Leading Question:

Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question (See: Section 141 IEA).

Section 142 IEA provides that "Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a reexamination, except with the permission of the Court".

However, to ensure the same does not happen, a Defence Lawyer should always be vigilant in hearing the question put by the Prosecutor and object to the same prior to the same being answered by the witness.

Ref: Varkey Joseph Vs. State of Kerala AIR 1993 SC 1892:

"11. Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. … … Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Article 21 of the Constitution. It is not a curable irregularity."

Objection to Hearsay Evidence:

It is a settled principle of law that the facts to be deposed by a witness are to reflect his personal knowledge and hearsay is excluded, being inadmissible in nature. (See: Section 60 IEA)

Every act done, written or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears. Otherwise, it would be attaching importance to false rumour flying from one foul lip to another.

The Hon'ble Supreme Court of India in Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri And Another 2011 [2] SCC 532 has held that:

"19. The term `hearsay' is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word `hearsay' is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears.

20. … …

21. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross- examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a Judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.

22. The reasons why hearsay evidence is not received as relevant evidence are: (a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me", (b) truth is diluted and diminished with each repetition and (c) if permitted, gives ample scope for playing fraud by saying "someone told me that...........". It would be attaching importance to false rumour flying from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible."

[Also refer:

Sakatar Singh and Others Vs. State of Haryana 2004 [11] SCC 291; Pammi @ Brijendra Singh Vs. Government Of Madhya Pradesh 1998 CRI.L.J. 1617; Rayma Jusab Alimamad Vs. State Of Gujrat 1965 [2] CRI.L.J. 448 and Sant Ram And Others Vs. State 1952 CRI.L.J. 1223]

The only exception to the rule of exclusion of hearsay evidence is Section 6 IEA.

Thus, a Defence Lawyer must object to the hearsay evidence being deposed by a prosecution witness.

Objection to exhibition of Photocopy Documents or Electronic Evidence or Bank Account Statements:

In case of documentary evidence, the Indian Evidence Act distinguishes between Primary and Secondary Evidence. (See: Section 61 IEA)

Photocopy Document

However, without fulfilling the conditions under Section 65 IEA, a photocopy or xerox document is inadmissible in nature and cannot be proved by a witness. In case the same is sought to be exhibited by the prosecution, the Defence Lawyer ought to object to the same.

[Ref: Shalimar Chemical Works Limited Vs. Surender Oil and Dal Mills (Refineries) and Others 2010 [8] SCC 423 and Doctor Morepen Ltd Vs. Poysha Power Generation P. Ltd 2013 [137] DRJ 261]

Electronic Document

An electronic document can be brought into evidence, only if the same is accompanied with a certificate under Section 65B IEA and thus, an electronic document, without such a certificate, cannot be proved by a witness. In case the same is sought to be exhibited by the prosecution, the Defence Lawyer ought to object to the same.

[Ref: Anvar P.V. P.K. Vs. P.K. Basheer and Others 2014 [10] SCC 473]

Print out of Bank Account Statements:

A printout of entry or a copy of printout referred to in sub-section (8) of section 2 is required to be accompanied by a Certificate under Section 2A of the Bankers' Book Evidence Act, 1891.

Sub-section (8) of section 2 reads as under:

(8) "certified copy" means when the books of a bank,—

(a) are maintained in written form, a copy of any entry in such books together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title; and

(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A.

(c) a printout of any entry in the books of a bank stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism obtained by a mechanical or other process which in itself ensures the accuracy of such printout as a copy of such entry and such printout contains the certificate in accordance with the provisions of section 2A.

Thus, any bank account statement document, without such a certificate, cannot be proved by a witness. In case the same is sought to be exhibited by the prosecution, the Defence Lawyer ought to object to the same.

Such a document, which is not admissible in the eyes of law, is liable to be Marked, instead of being exhibited. However, in case the document is still Exhibited by the Court, then the Defence Lawyer should ensure that his objection is recorded to the exhibition of the same.

The Hon'ble Supreme Court has held in Sait Tarajee Khimchand & Ors. v. Yelamarti Satyam Alias Satteyya 1972 (4) SCC 562 that:

"15. … The mere marking of an exhibit does not dispense with the proof of documents"

Objection to the Exhibition of document on the Mode of Proof thereof:

There are cases when the prosecution seeks to prove a document through a witness, who is, though, not the author of the document. It is a general principle that contents of a document can only be proved by its author.

In case such an attempt is made, the Defence Lawyer ought to object to the exhibition of the said document by a witness, who is not the author of the said document.

In case no such objection is raised, the Defence is subsequently barred from raising such an objection, in view of the law laid down in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another 2003 [8] SCC 752.

It is the duty of the Defence Lawyer to ensure that a witness does not prove anything that he is not entitled to prove.

Objection to giving evidence contrary to a written document:

There is a famous Hindi Saying "likhtam ko bhaktam ki zaroorat nahi" (there is no requirement of oral evidence of a written record). This principle is incorporated in Section 91 and 92 IEA.

In a criminal trial, there are occasions when the prosecution seeks to examine witnesses to give evidence contrary to a written record.

However, as oral evidence, contrary to a written record, is barred under Section 91 and 92 IEA, thus, in case any such attempt is made, the Defence Lawyer should promptly object to the same.

Objections to the Opinion by a non-expert Witness:

As a general rule, opinion of witnesses is inadmissible, as a witness is to depose the facts and not opinions.

The only set of people entitled to give an opinion are those persons categorised as experts under Section 45 IEA and none other.

If the opinion of a non-expert witness is sought to be introduced in evidence by the prosecution, then the Defence Lawyer must raise an objection regarding the same.

Objection to the witness deposing about aspects of which the Court can take Judicial Notice under Section 56 IEA:

There are occasions which the witness seeks to depose regarding aspects of which the Court can take Judicial Notice under Section 56 IEA.

Section 56 reads as under:

56. Fact judicially noticeable need not be proved. — No fact of which the Court will take judicial notice need to be proved.

In such a case, the Defence Lawyer can object to the same.

Ref: The Hon'ble Delhi High Court in Ved Prakash Kharbanda vs. Vimal Bindal, 2013 (198) DLT 555 held as under:

"13.5 Nothing can be said to be proved, however much material there may be available, until the Court believes the fact to exist or considers its existence so probable that a prudent man will act under the supposition that it exists. For example, ten witnesses may say that they saw the sun rising from the West and all the witnesses may withstand the cross-examination, the Court would not believe it to be true being against the law of nature and, therefore, the fact is disproved'. In mathematical terms, the entire evidence is multiplied with zero and, therefore, it is not required to be put on judicial scales. Where the Court believes the case of both the parties, their respective case is to be put on judicial scales to apply the test of preponderance."

Objections to the exhibition of the entire Disclosure Statements of the Accused by the Prosecution:

Sections 25 to 27 IEA deal with statements made by an Accused to the Police during the investigation of the matter.

A statement, which leads to the discovery of a fact under Section 27 IEA is called a Disclosure Statements.

However, in a disclosure statement, only and only the portion of the statement which lead to the discovery of a fact or thing is admissible in evidence. [Ref: Goverdhan @ Amit Vs. State 2009 [3] JCC 2051]

Thus, in case the prosecution seeks to have the entire statement exhibited, the Defence Lawyer ought to object to the same, as all the other portion of the statement is inadmissible in nature.

Contesting the attempt of the prosecution to declare a witness as Hostile:

There is a tendency of Prosecutors in India to have a witness declared as hostile, however, it is stated that the Evidence Act does not define the term "Hostile Witness".

Rather, the prosecution is to seek permission of the Court to cross-examine its own witness under Section 154 of the Indian Evidence Act.

Hence, while such a request is being made, it is the duty of the Defence Lawyer that such a request is duly contested.

Simultaneously, it is also the duty of the Defence Lawyer to ensure that even if such a permission is granted, the Prosecutor should confine himself to the aspects on which the permission is so granted.

It is also important for the Defence Lawyer to be present and observe the body language of the witness while the said request is being made to the time of cross-examination of the witness by the Prosecution.

Objection to the proof of Statement recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1973:

Statements of witnesses recorded by the Police under Section 161 Cr.P.C., 1973 are per-se inadmissible, according to Section 162 of the Code.

There are cases in which the Prosecution, after having got declared a witness as hostile, seek to prove a statement made by the witness to the Police, however, the same is inadmissible in nature and the Defence Lawyer ought to object to the same.

Ref: Satish Kumar Vs. State 1995 [34] DRJ [DB]:

(21) In her cross-examination by the prosecution, she had affirmed the fact, an suggested to her, that she had told the police that her son Suresh had returned at 12 midnight and had gone behind the hut for urination and she had also stated to the policy that the appellant, Satish Kumar, had followed Suresh. She hid also stated to the police that she heard the noise of her son saying "HAI Ma Muj he Bachaao, Suresh Ne Mujhe Chaku Mar Diya HAI". These statements made by the witness in cross-examination appear to be wholly inadmissible in evidence because it need not be emphasised that any statement to the police made by any witness is not admissible in evidence and such a statement could be used only for the purpose of contradicting the witness in view of provisions of Section 162 of Criminal Procedure Code read with Section 145 of Indian Evidence Act.

(22) We are surprised that the Additional Sessions Judge, who recorded" the evidence, had lost sight of such elementary legal principles of taking evidence in a case. The prosecutor who put the questions in this form to elicit the answers was also perhaps completely ignorant of the legal procedure for cross-examining the witness produced by the prosecution itself. The questions which ought to have been put to the witness while cross- examination by the prosecutor, should have elicited facts and not statements made to the police. So, this part of the testimony of the witness has to be completely ignored from consideration as to what she had stated to the police.

Objection to the Exhibition of a letter written by a witness to the Investigating Officer:

There are various cases, especially in a CBI trial, wherein during the investigation of a matter, a witness writes a letter / communication to the Investigating Officer, which letter is, during the trial, sought to be exhibited by the Prosecution.

However, the said letter / communication is barred under Section 162 Cr.P.C. and thus, the Defence Lawyer should object to the exhibition of the same.

In this regard, reference may be made to the judgment of the Hon'ble Supreme Court of India in Kali Ram Vs. State of Himachal Pradesh 1974 Cri.L.J. 1.

Conclusion:

Thus, just as cricketers have to be agile on the field, a Defence Lawyer must be mentally agile and vigilant during the examination in chief. He needs to ensure that the statements are accurately recorded and raise objections to evidence which is impermissible in the eyes of law.

They must assist the Court by pointing out when the prosecution is looking to prove facts which are not relevant or when a witness tries to overstep the bounds of his personal knowledge and recollection.

The Defence Lawyer must ensure that the Prosecutor is using modes and manners of proof which are permissible under the Evidence Act, which is essential for a fair trial.

A vigilant lawyer ensures that the checks and balances for the fair and proper recording of evidence during the examination in chief is maintained.


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