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.

1Sec 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.
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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 partys 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 opponents 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 petitioners right to
cross-examine, which had resulted in breach of principles of natural justice. The provisions of

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.
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Section 16 (1) of the FEMA, which mandate a grant of reasonable opportunity of being heard
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

5Maganlal Vs. King Emperor AIR 1946 Nagpur 126

6Juwar 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.
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be defeated by the improper Cross-Examination. One of the purposes of Cross-Examination is to

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 partys witness.

A lawyer should use leading questions i.e. is that correct? and isnt 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
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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.

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

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

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

examination under the Evidence Act.

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 .
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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 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

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

March,2013
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.
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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.

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 202
12 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.
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