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The art of Cross- Examination in Criminal Cases in India

Adv Nishant Rai, Delhi

The testimony of a witness is not legal evidence unless it is subject to cross-examination; and where no opportunity has been given to the appellant’s counsel to test the veracity of the principal prosecution witness or where owing to the refractory attitude of the witness the Court is constrained to terminate all of a sudden and prematurely the cross-examination of the witness, the evidence of such witness is not legal testimony and cannot be the basis of a judicial pronouncement.[1]

“The exercise of this right [cross-examination] is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the fact to which he bears testimony, the manner in which he has used those means, his power of discernment, memory, and description, are all fully investigated, ascertained, and submitted to the consideration of the jury, who have an opportunity of observing his demeanour, and of determining the just value of his testimony. It is not easy for a witness, subjected to this test, to impose on a Court or jury, for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which cross-examination may be extended.”[2]

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.[3]

In Criminal Trial, leading questions were permitted to be asked to a prosecution witness in examination-in-chief in the absence of defence counsel. It was held that asking of leading questions is not only against the tenor of S. 142 of the Evidence Act but also violates the right of an accused to a fair trial when such leading questions are permitted to be asked in the absence of defence counsel. Such conduct of trial gives accused persons, a reasonable cause for their apprehension that justice is not being done to them.[4]

A skilful cross-examination is the highest attainment of an advocate’s art. It is, difficult to frame anny rules governing it; its technique can be acquired only by natural instinct or by long practice. The Act has, however, laid down some rules of guidance.

Further, it shall be remembered that, no cross-examination can be allowed of a witness who is “summoned to produce a document”, (S. 139 IEA, 1872), but it is competent of a witness to character (S. 140 IEA, 1872). Similarly, 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 (S. 145, IEA, 1872)

The range of cross-examination is unlimited, the only circumscribing limits being that it must ‘relate to relevant facts” (S. 138, IES, 1872)

BY sections 146 to 150 the Legislature has tried to give very wide powers to the cross-examiner to help in finding out the truth in oral depositions laid out before the Court. But the Legislature protects the witness (i) from consequences which he might incur from speaking the truth; and (ii) from needless questions, for the cross-examiner has to see that the imputations he makes against the witness are well-founded.

In the course of cross-examination, a witness may be asked following questions—

  • To test his veracity;
  • To discover who he is and what is his position in life;
  • To shake his credit by injuring his character, although his answer might criminate him to penalty or forfeiture. (Section 146, IEA, 1872)

The cross-examination is treading on safe ground so far as (1) and (2) are concerned. As regards (3), complex set of consideration present themselves.

If the questions refer to a relevant matter the provision of Section 132 are applicable (S. 147, IEA, 1872). If, however, the questions refer to an irrelevant matter, they are proper—

  • If the truth or imputation conveyed by them would seriously affect the opinion of the Court as the credibility of the witness.

Following cross-examination are improper—

  • If the imputation conveyed by them relates to matters so remote in time or of such a character that they would not affect the credibility of the witness;
  • If there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence. (Section 148, IEA, 1872)

Before such questions are asked, the person putting them must have reasonable grounds for thinking that the imputations was well-founded (section 149, IEA, 1872). If any lawyers asks such questions without reasonable grounds, the court may report the case to the High Court or other authority to which he is subject (Section 148 IEA, 1872)

[1] Ram Kumar v. King Emperor, (1936) 12 Luck 552

[2] TAYLOR, 12th Edition. P. 910

[3] Meer Sujad Ali Khan Nawab Zoolfukar Dowla Bahadoor v. Lalla Kasheenath Doss,(1866) 6 WR (civil) 181, 182

[4] Madan Lal & Ors v. State  of Rajasthan & Ors, 2012 Cr.LJ 1439 (Raj)

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