Dhawesh Pahuja
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. 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.
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 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 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 opponent’s 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.
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 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.
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 party’s witness.
A lawyer should use leading questions i.e. “is that correct?” and “isn’t 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 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 follows:-
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.
Case Study:
1. Hari Narayan singh v/s State of West Bengal (2009 CriLJ 4001 [cal.])
(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.
2. Bhagwan Singh v/s State of Bihar (AIR 1976 SC 202)
(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.