In a court of competent jurisdiction cross examination becomes an important tool which helps to separate the fact or reality from falsehood. Chapter 10 of the Indian Evidence Act, 1872 deals with the topic of cross examination of witness in courts of law who are considered compatible and compellable under the provisions of this Act. This chapter expresses the propositions of law, well settled principles in English law regarding the examination of witness assuming that the witness is already before the court. Cross examination is the process whereby a party who appears in court asks the opposing witness’ party questions to ascertain the veracity of his claims[1]. These are the questions which a lawyer directs to a witness of an opposing party with the intention of getting privileged information from such witness.
Examination of witnesses is an important principle in which witness take a stand of his or her words, for the protection of the integrity of the evidence. Cross examination has evolved over the years due to experiences acquired during court proceedings which have spanned through centuries. A witness can make false claims due to jealousy or enmity against the other party. Therefore the court only accepts his claim if he passes the cross- examination where the truth might be revealed. It helps the prosecuting counsel to obtain evidence that will aid him in the case and will also avail him of the opportunity of asking questions on already provided evidence(s) to ascertain viability.
SCOPE & PURPOSE
The subject of cross examination is one of the vital importance in the conduct of law cases because it has the power to shift the truth from falsehood. The objects of cross examination are to impeach the accuracy, credibility and general value of the evidence given in-chief to shift the facts already stated by the witness to detect and exposes discrepancies or to elicit suppressed facts which will support the case of cross-examining party[2]. The scope of cross examination is twofold- to weaken the, qualify or destroy the case of the opponent and to establish the party’s own case by means of his opponent’s witness. Cross- examination is directed to the credibility of the witness and the facts to which he has deposed in chief including the cross- examiner’s version thereof and the facts which the witness had not deposed butt to which the cross examiner thinks he is able to depose.
The right to cross examination flows from the principles of Natural Justice that evidence may not be read against a party until the same has not been subjected to cross-examination or atleast an opportunity has not been given for cross examination[3]. This right is a statutory right which vests in party to the proceedings. The party who has the right to take part in any enquiry or trial can cross examine the witness/es. A right to cross examine a witness can also arise when a witness speaks against one’s interest who calls him as Section 154 of the Indian Evidence Act which defines hostile witness. Failure to cross examine a witness on some material part of his evidence or at all may be treated as an acceptance of the truth of that part or the whole of his evidence. Atleast 70% of the effectiveness of cross examination is determined before the cross examination for which preparation is important.
The defence lawyer must prepare himself adequately for the upcoming cross examination. He should read the information contained in the police reports, FIR, seizure memo and the police statements[4]. In short, he must be aware of everything about the offence of the accused is said to have committed which will enable him to point out any omission or contradiction that had existed during the examination- in –chief. It must be noted that if a defence lawyer does not call out the omissions and contradictions observed during the cross-examination period, he will not be permitted to point them out in the future trial.
SECTION 137
Section 137 of the Indian Evidence Act, 1872 states that a witness should be first examined by the party who has called him and this is called examination-in-chief. And when an adverse party examines the witness, it is called cross-examination. In the case of Ghulam Rasool Khan vs. Wali Khan, it was held that there might be no need for a cross examination if the testimony is prima facie unacceptable. If the party who called the witness, questions him, again after cross-examination, it is called re-examination. The main objective of examination-in-chief is to place the witness’s story before the court and is conducted by his own counsel while the object of re-examination is to clear up any doubts raised in cross-examination and is again conducted by the witness’s counsel.
The objective of cross-examination is to prove the facts that are favourable to the other side or unfavourable to the witness’s side and to attack the credit of the witness. It is conducted by the counsel on the other side. It is clearly the counsel’s primary duty to bring out every relevant facts in support of his client’s case to which the witness can depose in the most clear and chronological way. It should be the practice of the prosecuting counsel to ask a witness question favourable to the prisoner as he must lay all the material evidence before the court. The power and opportunity to cross examine is one of the principle tests devised by the law for the ascertainment of truth and is certainly, a most efficacious test. It is not easy for the witness who is subjected to this test by the court for however artful the falsehood may be it cannot embrace to all the circumstances to the extent of the cross examination process which shows that whatever the witness presents before the court is open to detection. The purpose of re-examination is to get clarification of some doubts created during cross-examination and totally new facts cannot be introduced at this stage. In Jayendra Vishnu Thakur vs. State of Maharashtra[5], the Supreme Court observed that the right to cross-examine is not only a natural right but also a statutory right.
SECTION 138
Section 138 of the Act talks about the order in which the examination is supposed to take place. A witness will be first examined in chief, and then if the adverse party deems fit, cross-examined and if the party calling him so desires, be re-examined. The matter of re-examination should be limited to examination in chief and cross-examination and if any new matter is introduced by permission of the court, the witness can be subjected to cross-examination, again, upon that matter. The examination and cross examination must relate to the relevant facts but the cross examination need not to be confined to the facts which the witness testified in the examination-in-chief.
The re-examination should be directed to the explanation of matters referred to in the cross examination and if, with the permission of the court, new matter is introduced in re examination, the adverse party may further cross examine upon the matter[6]. In SSS Durai Pandian v SA Samuthira Pandian, it was stated that an order of re-examination can be made by the court on an application by the party as it is not, limited to the courts’ own motion[7].
SECTION 139
Section 139 of the Act talks about the cross examination of a person who is called to produce any document before the court of law. A person who is called to produce a document does not become a witness just because he produces a document and thus, cannot be cross examined unless; he is called as a witness. If he makes on oath a false statement regarding the possession of the document he can be prosecuted for perjury and with the possession of the document he refuses to produce it without lawful excuse he can be prosecuted under Section 175 of the Indian Pena Code.
SECTION 140
Section 140 of the Indian Evidence Act, 1872 states that witness to a character may be cross examined and also re examined if already examined in chief. The evidence of character is meant to assist the court in estimating the value of the evidence brought before the court through the mouth of the witness. In India the bad character of the accused is irrelevant except where it is a fact in issue, but if the evidence of good character of the accused is given under Section 53 not only the witness as to good character be cross examined under the present section, but independent evidence of bad character may also be given under Section 54.
SECTION 141&142
Section 141 of the Act deals with leading questions. A witness should tell the story relating to the relevant facts or facts in issue in his own words. If there is an inbuilt answer in the question, or if it is suggestive of an answer, a lawyer could construct a story out of the mouth of the witness which suits his client. Leading questions are generally not allowed to be put in examination in chief and re examination as it is presumed that the witness is favourable to the party calling him. If such a question is asked in the examination in chief or in re-examination, the adverse party may object to it. This has been provided in Section 142 and it also states an exception that such leading question may be asked on permission from the court, i.e., the objection is overruled.
SECTION 146
Section 146 of the Indian Evidence Act talks about the questions that are lawful in cross examination. This section enables the cross examiner to put certain questions in addition to the questions based on the relevant facts of the case. There are many objections which are raised during the cross examination which are asked by the opposite counsel. The objection of Argumentative is raised when the opposite advocate starts arguing with the witness. In the same way, when an advocate yells or intimidates or threatens a witness in order to provoke for a response either by asking questions without giving the witness an opportunity to answer objections may be raised. If the question is not within the scope of examination during cross-examination of the witness, then it is of no use to the court.
CONCLUSION
Examination of witness plays an important role in the presentation of evidence irrespective of civil or criminal nature of the case. In India where a large number of cases and complaints are filed in civil and criminal courts, every day delay in justice is common as pendency of cases in courts are also growing rapidly. It is true that the aspect of cross examination is a difficult task which requires perfect lawyer to groom his skills by reading trial and deposition so as to match with the challenging legal profession.
[1]Cross-examination And Its Legal Provisions Under Indian Law-EvidenceAct (lawnn.com), visited on 14-06-2021 at 16:29hrs.
[2] Udit Dwivedi-Examination of witness, Examination of Witness – Relevant Provisions And Case Laws (legalbites.in) visited on 14-06-2021 at 16:38hrs.
[3] What is Cross Examination: Cross Examination Strategies – Shonee Kapoor ,visited on 14-06-2021 at 16:43hrs.
[4] Cross-examination And Its Legal Provisions Under Indian Law-EvidenceAct (lawnn.com),visited on 14-06-2021 at 16:48hrs.
[5] 2009(4) AIR Bom R 621.
[6] Monir M. (Textbook on the Law of Evidence), Eleventh Edition.
[7] AIR 998 Mad.323.
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