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Art of Cross-Examination

In a judicial proceeding or a trial, the examination of witness is a crucial part to discover the truth and to validate the veracity of the witness. In Indian Evidence Law, cross-examination is termed as questioning of a witness called by the opponent (party). The motive behind cross-examination is not just to ask questions to an opponent, but also to fortify and deduce the case.

The main purpose of cross-examination is to verify whether, the witness presented is valid or not. It is one of the principles which is integral for the ascertainment of the truth, and it is certainly one of the most effective method. Procedure and principle of examination and cross-examination of the witnesses are discussed under the Sections 135-166 of the Indian Evidence Act,1872.

Examination of a witness can be done in 3 steps; First, 'Examination-in-Chief' which is the examination of a witness by the party who calls him; Second, 'Cross-Examination' which is the examination of a witness by the adverse party; Third, 'Re-Examination' which is the examination of a witness, subsequent to the cross-examination by the party who called him.

Main Objectives of Cross-Examination

  • To develop favourable matters that hasn't been said during examination
  • To reveal and establish that the statement provided by the witness is false.
  • To establish any interest, the witness may have in the result of the trial.
  • To establish that the witness has been coached and has memorized his testimony.
  • To reveal all the documents, that witness has attested to only that part which is out of context.
  • To check the witness's ability to hear, see, remember, and relate with the correctness of what he affirmed to.

Principles of Cross-Examination

  • The adverse party is allowed for a fair chance to cross-examine.
  • Cross-examination is not only available to the adverse party, but the party that calls the witness can also cross-examine him, if it was found that the witness has becomes a hostile witness.
  • Cross-examination without chief examination is not allowed.
  • If a piece of evidence is given by police while interrogating the witness which is disadvantageous to the party, then cross-examination in the absence of examination-in-chief is allowed.
  • If the Counsel is not present on the fixed date, then the witness can be called for another date for the cross-examination.
  • Once examination-in-chief is done, if after that the witness is failed to present for cross-examination then it may cause incredibility of that evidence.
  • If a witness seems to be confused during his/her cross-examination, then the court has all the rights to ask questions to that witness.
  • Cross-examination is always viva vice in nature.

Rules of cross-examination

There is no certain set of rules that lay down a proper conducting procedure of cross-examination, it requires long term practice to lean the art of cross examination. However, the Act sets out some guidelines to be followed for cross-examination. According to Section 138 of the Act, cross-examination must pertain to and must not deviate from the relevant facts. The adverse party has the freedom to not restrict the questions to those introduced in the examination.

Therefore, cross-examination of the witnesses who give the documents is not permitted but cross-examination of a witness related to earlier statements made in writing on relevant issues is allowed. According to Section 146 of the Act, the cross-examining party may ask any question(s) to the witness to examine his credibility, to understand who he is and his role, or reduce his credit by harming his character. The witness has to answer all the relevant questions asked to him.

At times irrelevant questions are allowed, if the statements given by the witness, in any manner, critically affect the credibility of the witness. However, there are some questions that are considered to be improper questions such as, questions relating to those matters, which does not affect the credibility of the witness and those claims against the character of a witness, will hold no relevance to the evidence produced by the witness. During cross-examination of the witness, the party has an option to not answer all those questions which are improper or irrelevant.

Hostile Witness

Hostile witnesses are those witness, who from the manner in which he or she provides the evidence, shows that he or she is not desiring of telling the truth to the court. Dinesh Verma, Cross-Examination & Principles of Cross-Examination, Corporate Law Articles (2020) There is no precondition to declare a witness hostile, the court has to examine whether the witness is hostile or not.

Questioning by a party to his own witness

As per Section 154 of the Act, a party with the consent of the court can cross-examine his own witnesses when certain situation occurs, like when a witness a turns hostile, at that time it is important for the party to examine him. In the case of S. Murugesan v. S. Pethaperumal AIR 1999 MAD 76, it was contented that "Section 154 confers a description on the court to permit cross-examination of the witness by the party who calls it and it doesn't contain any specific condition or guidelines which made govern the exercise of such discretion but it is generally expected that the judge will use his power judiciously with proper justification."

Impeachment of witnesses:

Section 155 of the Act deals with the impeachment of the witnesses.

This section states three different ways to impeach the credit of the witness which are:
  • When a person provide the evidence and testify that the witness presented is unworthy of credit.
  • When it is proved that the witness has been bribed or has received the bribe. In Case Bhogi Lal v. The Royal Insurance 26 ALJ 377, it was contended that "when the witness in question has been merely offered a bribe, and the demand of bribe made by the witnesses, should be proved."
  • The credit of witness can be impeached if it proved that the statement is inconsistent or contradictory with any part of his evidence provided by him in writing or was reduced in writing. Majid v. State of Haryana, AIR 2002 SC 382

Power of judge to ask question

The Learned Judge of the trail has the power to put forth questions and can order the presentation of evidence under Section 165 of the Act. It is the duty of the Learned Judge to look into all the matters which are open to ascertain the truth and give an unbiased and effective judgement. In view of the Learned Judge, in case there are questions that have been neglected or willfully avoided, he can proposed question to the witness in that light. However, it is integral that the judgement of the Court should not be based merely on those questions.

In Ram Chander v. State of Haryana 1981 SCR (3) 12 , the Court stated that "The presiding officer must cease to be a observer and a mere recording machine. He must participate in the trail. He must show intelligent interest and put question to witness in order to ascertain the truth. But this he must do, without unreasonably trespassing upon the functions of the counsel of parties. He must not play a part of a party nor should he frighten or bully the witnesses."

Be it a civil or a criminal case, the cross-examination of the witnesses plays a significant role to adduce and presentation of evidence and to prove the relevant facts. The provisions of the Act, are very important for witness protection, i.e, it safeguards the witness' interests to give statement without any compulsion or fear. Section 135 to 166 of the Act, clarify aspects of the examination of witnesses such as the rules, principle, how to check the credibility of witness, what questions to be asked to the witness, the procedure of examination, and other relevant things related to cross examination. In any case, constructive cross-examination can make the party lose or win the trail. However, cross-examination is a process of meticulous determination, hard work and common sense. Therefore, it can wisely said that the structure of a cross-examination when arranged and sequential results in a successful proceeding for the client and Court and the art of cross-examination can be mastered only with constant training and practice.

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