March 5, 2013

INTRODUCTION

In India where large number of complaints and cases are filed in civil and criminal courts every

day, delay in justice is common as pendency of cases in courts are also growing rapidly.

Examination of witnesses plays an important role in the presentation of the evidence in a court of

law irrespective of civil or criminal case and admissibility of evidence is also an important aspect

which has to be decided by the judges only. The testimony of a witness is recorded in the form of

answer question. Witness is not permitted to deliver a speech to the Court, but is supposed only

to answer the question. This way the testimony of the witness, can be confined to the facts

relevant to the issue. Such process of recording the evidence is called his examination. The

examination of a witness by the party who calls him shall be called his Examination-in-Chief. It

must relate to relevant facts. No leading questions1 can be asked. The object of this examination

is to get from the witness all material facts within his knowledge relating to the party's case. It is

the duty of the counsel to bring out clearly and in proper chronological order every relevant fact

in support of his client's case to which the witness can depose. The statements made in

examination-in-chief lose much credibility and weight unless they are put into the crucible of

cross-examination and emerge unscathed from the rest.

Due to which each case will be looked upon clearly and it will take long time to pass the

judgment by the court. The examination of witnesses can be classified into three types as defined

under ‘Sec: 137’ of ‘Indian Evidence Act, 1872’ as follows:-

“Examination-in-chief means the examination of witness by the party who calls him shall

be called his examination-in-chief.

Cross-Examination means the examination of witness by the adverse party shall be called

his cross-examination.

1 Sec 141, Indian Evidence Act, 1872; Leading Questions- Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

1Pooja Malhotra R760210039 500012403

March 5, 2013

Re-Examination means the examination of a witness, subsequent to the cross-

examination by the party who called him, shall be called his re-examination.”

The order of examination is laid down under Sec 138. As per sec138, every witness shall be

examined first by the party who has called him, then by the opposite party, and then, if the party

who called, as per the party’s desire

RIGHT OF CROSS-EXAMINATION

The right of Cross-Examination is one of the most powerful instrumentalities provided lawyers

in the conduct of litigation. One of the most important purposes of Cross-Examination is to

attempt to destroy the testimony or the credibility of the opponent’s witnesses. Justice is not

served if a witness is unable to communicate credibility to a jury. The search for truth is the

ultimate and idealistic end of all litigated matter in a court trial. In Jagdish Chand Pareek vs

Mukesh Kumar Pareek2, decided on 13 February, 2013 the trial court had closed the right of

the appellant-defendant to cross-examine the plaintiff. The appellant contested the following

order was illegal and deserves to be set aside. As regards the denial of opportunity to cross-

examine the plaintiff parties and taking into consideration the order-sheets, the court is of the

opinion that the order for closing the right of the defendant to cross-examine the plaintiff was

not proper. Further, in Sri Ashwatha Reddy vs Smt M Deveeramma3 on 6 February, 2013 the

court appellant-defendant would also have a right of cross examining the plaintiff on this issue

and in view of an opportunity having been granted to appellant- defendant also to lead evidence.

Many time courts have compared the right to cross examination as a right under natural justice.

Like in Shahid Balwa vs The Directorate Of Enforcement4 on 24 January, 2013 the High

Court of Delhi held that the respondents  had completely compromised the petitioner‟s right to

cross-examine, which had resulted in breach of principles of natural justice. The provisions of

Section 16 (1) of the FEMA, which mandate a grant of reasonable opportunity of being heard 2 AIR 2013, Raj 282.3 Citation could not be found. Access from http://indiankanoon.org/doc/23749881/, Accessed on 3th,March, 2013. 4 Citation could not be found. Case accessed at http://indiankanoon.org/doc/42619944/, Accessed on 3th March, 2013.

2Pooja Malhotra R760210039 500012403

March 5, 2013

before imposing a penalty, encapsulated within it, the right to cross-examine any person on

whose statement reliance is sought to be placed by the complainant.

CROSS EXAMINATION AS EVIDENCE

The art of Cross-Examination plays an important role in the trial of each case which involves

hard work and talent of lawyers while providing justice to their clients. A perfect lawyer should

learn the art of Cross-Examination not by reading newspapers but the successful artist learns by

doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet,

by conducting the examination personally. The trial lawyer must learn as well to adapt to

particular witnesses and different cases.

The examination of a witness by the adverse party shall be called his cross-examination. The

purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a

party is admissible against that party unless the latter has had an opportunity of testing its

truthfulness by cross-examination5. The Supreme Court has pointed out that if the oral testimony

of certain witness is contrary to proved facts, their might well be discarded on that ground. If

their testimony is on face of it unacceptable, courts are bound to accept it merely was no cross

examination. The purpose of cross examination is to expose the truth about the testimony of the

witness. 6

The main object of Cross-Examination is to find out the truth and detection of falsehood in

human testimony. It is designed either to destroy or weaken the force of evidence which is

already given by a witness. Cross-Examination of witness is a duty of every lawyer towards his

client and not a matter of glory and fame. It is the most efficacious test to discover the truth and

to detect the false statements of the witness. It should be remembered that the Justice should not

be defeated by the improper Cross-Examination. One of the purposes of Cross-Examination is to

5 Maganlal Vs. King Emperor AIR 1946 Nagpur 1266 Juwar Singh v. State of M.P, AIR 1981 S.C 373. Cross- examination need not be confined to the facts stated by the witness in his examination-in-chief. It can extend to the whole range of relevant fact and also the fact exposing the credibility of the witness.

3Pooja Malhotra R760210039 500012403

March 5, 2013

asking questions regarding what the witness has stated in the Examination-in-chief and the

answer is the reply by the witness to the question put by the advocate.

The object of cross-examination is to impeach the accuracy, credibility and general value of the

evidence given in chief; to sift the facts already stated by the witness, to detect and expose

discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining

party. Cross-examination, though a very powerful, is also a very dangerous engine. It is a

double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed. To

wield it to advantage requires a great practice and natural tact. It should be keep in mind that the

essence of cross-examination is, that it is the interrogation by the advocate of one party of a

witness called by his adversary with the object either to obtain from such witness admissions

favourable to his cause, or to discredit him. Cross-examination is the most effective of all means

for extracting truth and exposing falsehood. But if the adverse party has had liberty to cross-

examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-

examined.

Often, however, one needs to spend time with the witness to develop several critical points to

counter the impact of the direct examination. Before initiating a Cross-Examination of any

witness, the lawyer should clearly bear in mind those points he or she wishes to make with that

witness. And then, he or she should write them down. These points also should be discussed with

those who are assisting at trial. Patience is the virtue in Cross-Examination and judges must give

chance to every party to Cross-Examine the other party’s witness.

A lawyer should use leading questions i.e. “is that correct?” and “isn’t it a fact” etc. at the time of

Cross-Examining of the witness because asking only leading questions is perhaps the oldest rule

of Cross-Examination. It is an old rule because it is a good one. Leading questions are most

effective because they essentially allow the Cross-Examiner to testify and the witness to ratify.

The technique advances one of the important dynamics of the courtroom is control. Asking

leading questions allows the Cross-Examiner to be forceful, fearless, knowledgeable and

informative. Good thing come from leading questions. Usually be aware that leading questions

also can grow tiresome. No one likes to hear a hundred questions in a row that end with, “is that

correct?” and all the questions put during the trial of Cross-examination must be lawful as

permitted under ‘Sec: 146’ of ‘Indian Evidence Act, 1872’.

4Pooja Malhotra R760210039 500012403

March 5, 2013

Questions asked during the Cross-Examination must be relevant to the issue related in the facts

of the case and indecent & scandalous questions can also be asked by the advocate at the time of

Cross-Examination unless they relate to the fact in issue. Most importantly questions intended to

insult or annoy should be forbidden by the court though questions seems to be proper.

The court who has authoritative power to decide the case can recall the witness for the Cross-

Examination based on the facts and circumstances of the particular case and a summary

procedure does not take away the rights of the parties to Cross-Examine whereas every party has

to be given fair deal in the matter of Cross-Examination. There are certain important points

which can be considered as chief heads of the Cross-Examination as follows7:-

1. To cause the witness to alter or amend his evidence by questioning about his testimony.

2. To modify the evidence given under the Examination-in-chief, by causing the witness to

speak to supplementary facts to show the reasons and circumstances.

3. To discredit the evidence of witness by putting questions connected with his character.

4. From reasons arising out of his evidence by causing him to give further evidence.

5. To cause him to give evidence to be received as true.

In departmental proceedings the rules of evidence laid down in the Evidence Act are, strictly

speaking, not applicable and the Inquiry Officer, the Presenting Officer and the charged public

servant are not expected to act like judges or lawyers. The right of the Government servant to

cross-examine a witness who has given evidence against him in a departmental proceeding is,

however, a safeguard implicit in the reasonable opportunity to be given to him under Article 311

(2).

The scope or mode of cross-examination in relation to the departmental enquiries have not been

clearly set out anywhere. But there is no other variety of cross-examination except that envisaged

under the Evidence Act. It follows, therefore, that the cross-examination in departmental

enquiries should, as far as possible, conform to the accepted principles of cross-examination

under the Evidence Act.

7 Md. Ibrahim Khan vs Susheel Kumar And Anr, AIR 1983 AP 69

5Pooja Malhotra R760210039 500012403

March 5, 2013

Cross-examination of a witness is the most efficacious method of discovering the truth and

exposing false-hood. During the examination-in-chief the witness may say things favourable to

the party on whose behalf he tenders evidence and may deliberately conceal facts which may

constitute part of the opponent's case. The art of cross-examination lies in interrogating witness

in a manner which would bring out the concealed truth.

Usually considerable latitude is allowed in cross-examination.

i. It is not limited to matters upon which the witness has already been examined-in-chief,

but may extend to the whole case.

ii. The Inquiry Officer may not ordinarily interfere with the discretion of the cross-examiner

in putting questions to the witness. However, a witness summoned merely to produce a

document or a witness whose examination has been stopped by the Inquiry Officer before

any material question has been put is not liable to cross-examination

iii. It is also not permissible to put a question on the assumption that a fact was already

proved.

iv. A question about any matter which the witness had no opportunity to know or on which

he is not competent to speak may be disallowed.

v. The Inquiry Officer may also disallow question if the cross-examination is of inordinate

length or oppressive or if a question is irrelevant.

vi. It is the duty of the Inquiry Officer to see that the witness understands the question

properly before giving an answer and of protecting him against any unfair treatment.

CASES WHERE WITNESS CANNOT BE CROSS-EXAMINED

When witness not to be Cross Examined:

i. A witness summoned merely to produce a document: In case of Shakuntala Jagdish

Ghengat vs Municipal Corporation8, Jalgaon on 15 September, 2010 the court held

8 Citation could not be found. Accessed at http://indiankanoon.org/doc/173946/, Accessed on 3th March,2013

6Pooja Malhotra R760210039 500012403

March 5, 2013

that right to cross examine the said deponent of the affidavit dated, in view of the

provisions of  Section 139 of the Indian Evidence Act

ii. A witness sworn by mistake

iii. Where a person is presented by the assessee as his witness, he can only carry out

examination -in-chief of his witness and does not get any

vested right to cross examine his own witness.9

iv. A witness whose examination has been stopped by the judge before any material question

has been put is not liable to cross-examination;

v. A witness giving replies in answer to questions by the Court can only be cross-examined

as to credit;

vi. A witness, who has given no evidence in chief, may not be cross-examined as to credit;

vii. The Court may disallow cross-examination used simply to oppress and not for the

purpose of justice;

viii. Witnesses to character, though liable to be, are in fact rarely cross-examined.

RECOMMENDATIONS MADE BY LAW COMMISSION

Law Commission in, 2000 in its 105th report reviewed the India Evidence Act and followed the

modification in provisions regarding cross-examinations. Sec 53A to be added as Sec 146 is only

confined to the question that might be put in cross-examination and limited operations. Section

53 A widens and bars such evidence to be adduced in any manner. In cases of sexual intercourse

or attempt, it was made impermissible to adduce evidence or to put question in cross-

examination of prosecutrix to her pertaining to genral immoral character, or previous sexual

experiences without any other person for proving such consent or quality of consent.

Sec 146 (1) to be added to statutory expressly that in a prosecution for sexual assault. It shall not

be permissible to adduce evidence or to put question in cross-examination of person assaulted

with respect to his/her sexual history. Character or conduct whether to establish consent or

otherwise.

9 Awdhesh U.Mishra, Ankleshwar vs Assessee on 17 September, 2010 Accessed at http://indiankanoon.org/docfragment/26924365/?formInput=%22right%20to%20cross%20examine%22%20sortby%3A%20mostrecent, Accessed on 3rd March, 2013.

7Pooja Malhotra R760210039 500012403

March 5, 2013

Testimony of child who has been subjected to sexual assault should be recorded at earlier

opportunity by a judge/magistrate in the presence of a friend, relation or social worker whom the

minor trusts.

For implementation of the above suggestions, videotape/ CCTV should be provided. Further,

where the child is to be taken for cross-examination, while recording the evidence of the minor,

appropriate breaks should also be provided to make the minor feel comfortable.

Leading Cases:

Hari Narayan singh v/s State of West Bengal10: Ratio-Impeaching the credit of a Witness by

Cross-Examining

According to this case court observed that it is not necessary that all the persons who happen to

be there should be brought as witnesses. One witness out of several is good enough, if his

testimony legally acceptable and believable.

Bhagwan Singh v/s State of Bihar11: Ratio-Cross-Examination of Hostile Witness

In this case Supreme Court observed “where the court gives permission to the prosecutor to

Cross-Examine his own witness thus characterizing him as, hostile witness, that fact does not

completely effaces his evidence. The evidence remains admissible in the trial and there is no

legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

Kartar Singh V. Thakur Singh12:

An order allowing cross-examination of a co-defendant by another co-defendant to the extend of

clash of intrest between them was held to be permissible.

10 2009 CriLJ 4001 [cal.]11 AIR 1976 SC 20212 AIR 2003 NOC 130 [P & H]; Ennen Casting P. Ltd v. M.M Sundresh, AIR 2003. Kant. 293, right of cross-examination allowed to be exercised by one co-respondent against the other when their interest are in direct conflict with each other.

8Pooja Malhotra R760210039 500012403