11/07/2026
The battle in a criminal trial does not begin with cross-examination. It begins with the first question in the examination-in-chief.
Most defence lawyers wait for their turn to cross-examine. In my opinion, that is a mistake. Chief examination is equally important, because if it is not conducted fairly, the defence enters cross-examination at a disadvantage.
The Bharatiya Sakshya Adhiniyam, 2023, under Section 146, provides that leading questions are generally not permissible in examination-in-chief if objected to by the adverse party, except with the permission of the Court. The object is simple: the testimony must come from the witness—not from the lawyer.
A witness may prepare before entering the witness box by reading previous statements. The law also permits a witness to refresh memory in limited circumstances under Section 162 of the Bharatiya Sakshya Adhiniyam. However, this is a limited statutory exception and cannot be used as a substitute for the witness’s own independent recollection or to justify prompting or dictating answers throughout the chief examination.
Unfortunately, in many criminal trials, a different practice is witnessed. The witness enters the witness box, and the Public Prosecutor or the examining counsel begins recording the evidence by repeatedly prompting the witness from the previous police statement. The witness merely repeats what is suggested instead of narrating the facts from memory.
This practice strikes at the heart of a fair trial.
Consider this example.
Proper chief examination:
“Please tell the Court what you witnessed on the date of the incident.”
A genuine witness may respond:
“I do not remember the exact time.”
“I cannot recall who arrived first.”
Such answers are natural. Genuine lapses of memory, omissions, and inconsistencies are often the best indicators that the witness is deposing from actual recollection. They also provide the defence with meaningful material for cross-examination.
Now compare that with:
Improper chief examination:
“You saw the accused at 8:30 p.m. holding a knife, and thereafter he assaulted the deceased, isn’t it?”
Here, the answer is embedded in the question itself. The witness is no longer narrating facts; he is merely affirming what has been suggested.
A witness’s credibility must be tested by his own memory—not by the prosecutor’s memory of the case diary.
Every defence counsel should therefore remain vigilant from the very first question asked in chief examination. Objections to leading questions, coaching, or dictation of testimony should be raised immediately. By the time cross-examination begins, much of the damage may already have been done.
A fair criminal trial is not secured only through an effective cross-examination. It begins with ensuring that the examination-in-chief is conducted strictly in accordance with law.
