THE PRACTICE OF RECORDING ‘WITNESS VOLUNTEERS’ DURING CROSS EXAMINATION, EXAMINED

Case after case, day after day, trial courts across the length and breadth of India are, after the witness answers a question in cross examination, recording what the witness continues to say after the prefix ‘Witness Volunteers’. Witnesses are being permitted to do this without any restraint or exercise of any manner of judicial discretion, if at all this practice is permissible in law and depends on the discretion of the Judge. There is no provision in The Indian Evidence Act, 1872 which permits this. There is no provision in the law of evidence in India which places the probative value of such a further statement at a lower level than the other responsive answers to questions asked in cross-examination.

The practice of recording the explanation of a witness, after he has answered the question in cross examination preceded by the words ‘Witness Volunteers’, to me, appears to be in conflict with the adversarial system in force in this country. We have examination in chief, cross examination and re-examination and these tools are more than sufficient to meet the needs of the system.

How many times I have asked the witness a question in cross examination and he answers and then starts giving an explanation. I object. The other side is shouting that the witness should be allowed to say what he wants and the Judge says’ Let him say what he wants to say’. The Judge then proceeds to record what the witness says, prefixed by the words ‘Witness Volunteers’.

In India as the Judge records the answers of the witness (except in rare circumstances where the question and answer are recorded) a reading of any cross examination will not show for what reason the Judge allowed the witness to say what he wants, after the witness had answered the question put to him in cross-examination. In fact many a time an objection to this sort of explanation by a junior member of the Bar is met with a curt, maybe angry response by the Judge, asking the counsel why he is objecting.

Maybe the philosophy is to allow the witness to say what he wants about the controversy on the assumption that the cross-examiner is trying to stifle the truth. Even Wigmore supports this idea in the following words “If the answer gives an admissible fact, it is receivable, whether the question covered it or not. No party is the owner of facts in his private right. No party can impose silence on the witness called by Justice.”[1] With great respect to jurists this to me is a rather inadequate analysis and clearly not much thought has gone into it. Maybe, we in India should not follow or be swayed by the reasons given by jurists from England and the United States of America but should try and evolve a solution within the framework of the Act.

The question, to my mind, which needs to be answered is ‘Why should a witness be allowed to explain when such a right is given in re-examination?’

The source of the problem in this country appears to be that there is no clear understanding of the scope of re-examination, though it has been clarified and explained in no uncertain terms by the Hon’ble Supreme Court. If this be so then any explanation needed to be given by a witness could be accommodated under re-examination. The Hon’ble Supreme Court of India has laid down the law in the following words:

“17. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the Court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.”[2]

This decision of the Hon’ble Supreme Court is in effect saying that Explanations are to be confined to re-examination and cannot be made a part of cross-examination.

We then need to examine what these ‘explanations’ which creep into evidence under the nomencalature ‘Witness Volunteers’ really are. They could be merely an expansion of the answer the witness gave. For example the witness may be asked to what caste he belongs and he answers SC and then adds, Scheduled Caste and gives the name of the caste. There really can be no exception taken to this by the cross examiner, as this is only an elaboration of the answer already given. If to the same question the witness first says SC and then adds “My grandfather was xxxxxx and thereafter my father and at this time the Plaintiff managed to get the records altered without notice to me and for this there was a criminal case against the Plaintiff and he was convicted.” This answer is unresponsive to the question

put in cross examination yet contains some relevant facts. Such an answer has the potential to prejudice the other party, apart from being evasive and telling a story which was not even asked for. In fact this may lead to a situation where the story the cross examiner is trying to tell, which may be the true one, gets completely clouded.

By this practice of recording unsolicited statements of witnesses under the heading ‘Witness Volunteers’ Courts are negating the very purpose of re-examination as enunciated in Section 138 of the Act. So much so, in most cases you will find the legend at the end of the deposition ‘Re-examination - NIL’. By this the lawyer whose witness is being cross-examined if sufficiently well tutored, as is normally the case, will have no need to even follow the course of cross-examination as his witness will have explained every other answer under the title ‘Witness Volunteers’ and would have negated or diluted the cross examination to such an extent that it would become useless. In such a case there is no guarantee that what is being said by the witness is the truth or that truth is being uncovered.

The Indian Evidence Act (‘the Act) is a consolidatory one, repealing all rules of evidence other than those saved by the last part of Section 2, which too has been repealed as having become unnecessary. Evidence is one of those matters which are governed by the law of the country in which the proceedings take place (lex fori). The Act is intended to be a complete code and does not permit the importation of any principle of the English Common Law relating to evidence to the contrary.[3] The provisions of the Act are however not exhaustive and  the court can invoke the aid of the principles of jurisprudence or of English law as supplementing and explaining the rules of evidence given in the Act.[4] The fact that the Act is of 1872 and over 150 years have passed, it would not be advisable to look to English judgments of later vintage, moreso for the reason that there is no written / codified Law of Evidence in England.

For a moment let us accept what Wigmore has said, that a witness should have the right to inject relevant facts in his testimony even if the question asked by the cross-examiner does not cover it, the question is whether this will help attain the goal. Is it not better to hone the existing tools provided in the Act to serve the needs of our adversarial system?

Wigmore says “..a witness on his direct examination, discloses but a part of the necessary facts. That which remains suppressed or undeveloped may be of two sorts, (a) the remaining and qualifying circumstances of the subject of testimony, as known to the witness, and (b) the facts which diminish the personal trustworthiness of the witness.”[5]

The ‘remaining and qualifying circumstances’ may remain undisclosed in examination-in-chief as the witness may be biased towards the person calling him / her and therefore reluctant to disclose these facts. The advocate who calls the witness tends to elicit facts favourable to his client. The ‘facts which diminish the personal trustworthiness of the witness’ are undisclosed for the reason that no witness wants to impeach his own trustworthiness.

If the ‘cross-examination’ tool was not there, the full truth to do justice between two warring litigants would never be achieved. The tool of ‘cross examination’ enables an advocate to highlight facts favourable to his client or impeach the trustworthiness of the witness. Lies, bias, exaggerations, improvements, contradictions can all be exposed, further strengthened by the right to confront to contradict, as contained in Section 145 of the Act. Seeing the need to give all assistance to uncover the whole truth, the cross examiner is permitted to ask leading questions – a tool to achieve the adversarial goal of getting at the truth.

Witnesses always treat the cross examiner as their opponent. The single reason is fear that they will be discredited.

Then comes re-examination, the tool which will enable restoring the credibility of a witness which has been impeached in cross examination or to provide explanations which would qualify any new facts unearthed in cross-examination.

Now we have examination in chief, cross examination and re-examination. These are well honed tools, which have been tried and tested and found effective in an adversarial system. The practice of ‘Witness Volunteers’ interferes with the proper functioning of these tools, it blunts their effectiveness and reduces the truth discovering mechanism already in place. The practice of ‘Witness Volunteers’ actually seems to be working at cross purposes with the purpose of cross examination.

For example, when a cross-examiner is trying to develop a case of contributory negligence, which is evident and the witness gives an answer which is not covered by the question it allows the witness to completely evade a leading question and thereby avoid an admission of contributory negligence. By restricting the right to explain the cross examiner has the latitude to develop his theory or story by asking leading questions.

The other aspect which plagues Indian Courts is the reluctance of Judges to record the demeanour of the witness. Somehow they seems averse to that idea – maybe a misplaced sense of justice and fair play that if they did so it would unnecessarily affect the case of the party being cross examined. If demeanour is noted many a time the reluctance of the witness to answer a clear unambiguous question will be highlighted and this would go a long way in assessing the evidence at the time of judgment.

The practice of ‘Witness Volunteers’ virtually renders cross examination of a well tutored witness a toothless old tiger. The witness can virtually dictate what will come on record as evidence.

By stopping this practice of ‘Witness Volunteers’ it will not keep out any explanation. With an attentive lawyer the explanations can be elicited in re-examination. The argument that ‘Witness Volunteers’ is necessary to get at the truth and there is no other method is an argument which has only to be heard to be rejected. The explanation which the witness wants to give is at the most delayed till re-examination, it is not kept out, except by the choice of the counsel whose witness is being cross-examined.

Now there is another danger. The explanation may contain hearsay evidence. A lot of time will be lost in explaining how the answer is hearsay and why it should not be considered, at the time of final arguments. In India we do not have the question and answer system which enables an unresponsive answer to be stricken off. Only answers are recorded, leaving the questions to the imagination of the person deciding the case. The ‘Witness Volunteers’ practice therefore also has the tendency to waste court and public time

[1] 3 J Wigmore, Evidence $785 (3d Ed 1940)

[2]  Rammi Vs State of M.P., (1999) 8 SCC 649

[3] Hira vs S, AIR 1971 SC 44

[4] Annavi vs R, 39 Mad 449

[5] 3 J Wigmore, Evidence $ 1368 (3d Ed 1940): “[Cross examination is beyond any doubt the greatest
   legal engine ever invented for the discovery of the truth.” $1367