Examination of a witness by the opposing/adverse party is called the cross-examination(C-E). C-E is the most effective of all the means for extracting truth and exposing deceit. It is a greatest legal system ever invented for discovery of truth. It is the only mode for testing the authenticity of the statements given by a witness in examination-in-chief relating to an incidence, which took place with him/er or in his/er presence. The word “cross examination” plays a predominant role in Courts. In a trial of Sessions case or Civil Case including the Motor Accidents Claims Cases, the C-E of a witness is considered as the major constituent in a trial. By virtue of the amendment to the Code of Civil Procedure, the procedure to record the evidence of a witness in chief in respect of civil cases was made easier.
C-E is generally considered to be the most difficult branch of the multifarious duties of the attorney. In trials of cases the question is not whether it is possible that the testimony may be false, but whether there is sufficient probability of its truth, that is, whether the facts are proved by competent and satisfactory evidence.
By competent evidence it is meant, that the law requires, as the fit and appropriate proof in the particular case, such as the production of writing, where its contents are subject of inquiry and by satisfactory evidence, is intended that amount of proof which ordinarily satisfies an unbiased mind beyond reasonable doubt.[i]
Allowing C-E of witness of such supporting Defendants by leading question may possibly elicit evidence which has not been elicited in examination-in-chief and which may end up filling the lacunas left in the examination-in chief.
PROCESS OF CROSS EXAMINATTION
OBJECTIVE OF CROSS-EXAMINATION
1. To develop constructive matters that has been left unsaid in direct examination;
2. To bring in all of a conversation or document, if the witness has testified to only a part out of context;
3. To exhibit that the witness are lying;
4. To establish that the witness couldn’t see or hear what he claimed;
5. To test the witness’s ability to hear, see, remember, and relate with accuracy what he testified to;
6. To institute the witness’s bias or bigotry;
7. To establish any interest, financial or otherwise, the witness may have in the results of the trial;
8. To impair the credibility of the witness, e.g., by inducing him to confess that he made statements on a prior occasion contrary to his testimony on direct examination, or by laying the groundwork for evidence of conflicting statements;
9. To impeach the witness by evidence that he has been convicted of a offense;
10. To bring to the attention of the court that the witness testifies evasively, hesitantly, belligerently, or so slowly that he seems to be struggling to support his examination-in-chief;
11. To establish that the witness has been taught and has memorized his examination; and
12. To impeach the witness in any another way permitted by law.
PURPOSE OF CROSS-EXAMINATION
The purpose of cross-examination is two-fold.:-
1. to weaken, qualify or destroy the case of the opponent. 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 shall support the case of cross-examining party.
2. to establish the party’s own case by means of his opponents witnesses. It may be either by way of admissions or by way of eliciting facts which might prove the case of the cross examining party. It is like a double edged sword. Properly used, shall destroy the opponents case and support the cross examining party. Otherwise, shall destroy the case of the cross examining party. It is an art which requires great skill. It can be acquired only by training and experience.
CROSS EXAMINATION U/D INDIAN EVIDENCE Act, 1872
Provisions related to cross- examination u/d Indian Evidence Act, 1872 are stated under Chapter IX of Part III.
- Cross-examination must be related to relevant facts but unlike re-examination, it need not be confined to facts deposed to in the preceding examination (Section 138).
- Cross-Examination of person called to produce a document (Section 139): A person summoned to produce a document does not become a witness and cannot be cross-examined unless he is called as a witness, but it is competent of a witness to character (Section 140)”.
- Leading question (Section 143): use leading questions as much as you can as that would give you Yes or No answers which will be useful. Leading questions will give you control as they give you the ability to set the tone and focus of the cross-examination. The cause for avoiding open-ended questions is that the witness has already told his story without interruption in his witness statement or evidence by way of an affidavit.
- A witness may be cross examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him or being proved(Section 145).
- By sections 146 to 150 the legislature has tried to give very wide powers to the cross examiner to help him in finding out the truth. In oral depositions laid out before the court.
- In cross-examination, a witness may be asked question.:
- to test his veracity;
- to discover who he is and what is his position in life;
- to tremble his credit by injuring his character, although his answer might criminate him or expose him to penalty or forfeiture (Section 146).
- All questions or inquires which are indecent or scandalous, unless they relate to facts in issue, are to be avoided (Section 151);
- And all questions which are calculated to insult or annoy or couched in a needlessly offensive form(Section 152).
- Cross-Examination is in almost all cases undertaken by the adverse party; but the court may permit a party to cross-examine his own witness if he proves to be a hostile witness.
- When any witness answers any question which is relevant in so far as it shakes his credit, no evidence can be given to contradict him but if he answers incorrectly he may be charged with giving false evidence. (Section 153).
- A hostile witness can be cross-examined u/s 154.
- In Warrant cases tried by magistrates, the accused person can after the charge has been framed and he has given his plea, re-call and cross-examine any witness for the prosecution (Section 246 Cr. P.C.).
- Exemption from cross-examination
Under the Indian Evidence Act mentions three kinds of communications as privileged from disclosure, i.e., Matrimonial, Official and Professional communication, except under exceptions provided. An objection may be raised in case the question pertains to such communication and is not covered by exception.
PRACTICAL TIPS AND STRATEGIES (COMMANDMENTS) OF CROSS-EXAMINATION
a. Be brief
b. Avoid too many long questions and complex words
c. Ask only leading questions
d. Never ask a question to which you do not already know the answer[ii]
e. Listen to the answers
f. Do not quarrel with the witness
g. Don’t permit the witness to explain
h. Don’t ask the witness to repeat the testimony he/she gave in examination in chief
i. Save the explanation for summation.
TYPES OF QUESTION TO BE AVOIDED AT THE TIME OF CROSS-EXAMINATION OF WITNESS (OBJECTION BY THE OPPOSING PARTY)
- The question of C-E should not be ultra-vires to the examination-in-chief. The question of re-examination should be within the scope of cross-examination, if a witness has been compelled to answer the question beyond the scope of the current trial.
- During the cross-examination of witness by the advocate a question which is asked w/o asking for new information makes an argument. This type of argumentative question will require argument in the answer.
- At the time of crossing the witness, an objection of asked and answered can be raised for the questions which are already answered by the witness during the examination in chief or previous cross. The court retains the authority to limit the C-E of witness by the repetitive questions asked by the advocate. An objection may be raised, when an advocate crossing the witness, yells or intimidates or threatens a witness or when an advocate is antagonizing the witness in order to provoke a response, either by asking questions without giving the witness a chance to answer or by openly badgering the witness.
- An objection may be raised on relevance when the question asked is not related to the current issue of the on going trial. At the same time the questioner should give the reason why the question is asked or why the answer of the witness should be added in the testimony.
- When the question is raised by the advocate lacks authenticity or source, this could be due to inadmissible evidence also. There must be preliminary facts that have been introduced before certain evidence is brought into the trial, whereby not laying the foundation to the question asked.
- When a question asked may be objected but would be in favour of the person who crossed as answering of the question or a part may still be considered correct and unbiased.
- Questions to harass or to misguide the witness by asking confusing, unintelligible, and ambiguous or question which may contain more than one meaning or simply to waste the time of the court.
- When a witness has heard that particular piece of evidence from someone else and not being himself in person, such type of hearsay evidence are inadmissible in court.
1. Ghulam Rasool Khan v. Wali Khan[iii]
It was held by the High Court of Jammu and Kashmir that- cross-examination might not be necessary if the witness testimony is prima facie unacceptable. So, if no relevant facts are answered by the witness or there is no credibility to his statements, his testimony can be rejected and there is no need for C-E in that case.
2. Sharadamma v. Renchamma
It was held that examination-in-chief must be done before the cross-examination. The opposite is neither possible nor permissible.
3. Purshottam Jethanand v. The State Of Kutch[iv]
The Court observed that this section does not help the accused to get the statements made during the investigation, but it does help him to use such statements in case he somehow obtained them. The statement on which the witness is being contradicted must be relevant to the matter issue.
4. Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal[v]
It has been pointed out that such questions relate to relevant facts and are relevant only to the issue whether the witness should or should not be believed.
In cases where the decision is solely dependent on oral evidence, it is most important to answer such questions.
Therefore, the Court can decide when a witness is compelled to answer questions and if the questions tend to criminalize him in any way, he cannot be prosecuted on the basis of his statements. He has been granted protection by the statute.
5. Sometimes a witness can turn hostile and it is necessary for the party that called a witness to cross-examine him if such a situation occurs. (S. 154)
In the case of Sat Paul v. Delhi Administration[vi], the Supreme Court has interpreted this section and defined a hostile witness as one who is not willing, to tell the truth when a party calls him.
[iii] 1983 AIR (J&K) 54
[iv] AIR 1954 SC 700 3
[v] (1915) 17 BOMLR 455
[vi] AIR 1976 SC 294, 1976 CriLJ 295
Author: Kaushal P. Modi, GLS Law College