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Cross Examination In Criminal Proceedings-An Overview

Cross examination is one of the highest act of an advocate and can only be acquired after years of observation and experience.
  1. What are the things to be done before cross examination

    1. The charge sheet and other statements of witnesses and the documents furnished u/s 207 Cr.P.C have to be verified thoroughly and if any documents are not furnished, get it from the court.
       
    2. Read the records thoroughly and note down the points then & there.
       
    3. Original documents in the court to be verified thoroughly.
      • You may get important points by going through the originals.
         
    4. First hand information with regard to the case should be gathered.
      • This can be done only by having a free and lengthly talk with the accused.
      • Find out who are the real witnesses and who are the cooked up witnesses.
    5. Unless you know the real facts of the case, you can not decide your defence and prepare for the cross examination.
       
    6. Preparation of chart
      • Do not rely upon the “list of witnesses to speak about the facts” given by the police along with the charge sheet.
      • A witness may speak about other facts also.
         
    7. Chart to show the names and rank of list of witnesses who speak about : (For IPC offence cases).
      1. FIR
      2. Eye Witnesses
      3. Motive
      4. Conspiracy, if any
      5. Circumstances against accused
      6. Seizure of weapons / other materials
      7. Observation mahazur/sketch
      8. Arrest of accused and statement
      9. Section 27 recovery, if any
      10. Any electronic evidence (CCTV, Call details etc)
      11. Identification Parade
      12. Any injuries on the accused
      13. Section 164 Cr.P.C. confession of accused.
      14. Section 164 Cr.P.C. Statements of witnesses
      15. Approver, if any
      16. Medical evidence (Post mortem etc)
      17. Inquest report
      18. Expert witness
      19. Judicial witness
      20. Police witness
      21. Investigating officer
        For other than IPC Offences (Eg.) (CB1 Cases etc)
        • Statements of witnesses and the documents to speak about by the witnesses.
           
    8. If possible go to the occurance place and assess the place and surroundings and note down the same.
      • Can be compared with statements of the eye witnesses and the observation mahazur and sketch drawn by police.
         
    9. Prepare the questions to be asked to every witness
      • All the prepared questions need not be asked to the witness.
      • Depending upon the answer, questions may be omitted to be asked Or Fresh questions will be asked on the basis of the answers.
         
    10. Defence counsel should b e ready to cross examine any witness at any time.
       
    11. Defence counsel should be (looking) confident
       
    12. Have an idea about the Presiding officer (Nature) and public prosecutor (Nature).
       
    13. Do not underestimate any witness.

  2. During Trial

    1. Keep it in mind that JUDGE know the prosecution case before hand, just like you.
    2. Cross examination is nothing but defence theory.
      • It is not a mere formality
      • One required to put one’s own case. AIR 1963 SC 1906 (Sirmal-Vs-Annapurna Devi)
    3. Always alert when Public prosecutor is taking chief examination.
    4. Don’t allow the public prosecutor to ask leading questions.
    5. At the same time, if the probable answer to the leading question is an admitted one or already proved, Need not object.
    6. While giving evidence during chief examination, a witness may give an answer in favour of the accused. You should be vigilant enough to bring the answer in the evidence.
    7. If the judge objects to put a question to the witness, explain to the judge in a low voice (without the witness hearing the explanation) the purpose for your question.
    8. If still the Judge is not convinced, do not ask the question. (Try to put the question in another form).
    9. Don’t fight with the Judge
    10. Presence of mind is very essential
    11. No cross to witness by bringing other witness’s statement/evidence.
    12. If you appear for one of the several accused, Do not put any question pertaining to other accused.
    13. Be ready that other counsel for other accused may put question to a witness and elicit an answer unfavourable to you. (A reading of the statement of the witness will make you Ready).
    14. Do not show any expression at that time.
    15. You can very well further cross examine the witness with regard to the answer unfavorable to you. (By drawing his attention to his statement/chief/Cross.)
    16. If no cross necessary, do not put unnecessary question to any witness (you may get unwarranted answer which may damage your case).
    17. A thorough knowledge about judgments on the issues you may rise in the case and basic knowledge about the relevant law is a must.
    18. Keep It In Mind Judges Are Also Human Beings.

  3. Object of Cross Examination

    To bring out the falsity and To find out the truth. In order to bring out this,
    • Discredit the witness
    • Destroy the chief examination
    • Establish accused’s version in bringing out the facts, which the witness has not deposed in chief examination.
       
  4. Manner of Cross – Two methods

    1. To approach a witness cautiously and politely with a view to create an atmosphere favourable to the elicitation of facts tending to support the opponent’s case.
    2. To go straight at the point and attack the witness directly.

      Secret of Cross is Patience
      1. Hawkins.J. then, Lord Brampton
        “It is building a brick wall around a man. You ask your question, and the answer enables you to plant one brick here. Then another question – another brick, in quite a different place. If you ask your questions politely, very likely he will place half a dozen bricks in position himself. They are scattered all over the place, but you have your plan. By degrees the ring is complete. The WALL rises. And he finds he cannot get out”.
        (Page 2918 in SARKAR Law of Evidence (Lexis Nexis)

      2. Wellman PP.28-29
        A good advocate should be a good actor. The most cautious cross examiner will often elicit a damaging answer. He should observe the greatest self control, while examing a witness. He should not allow himself to be swayed by his feelings but remain unmoved whether he achieves a triumph or commits a mistake. If he shows by his face that the infavourable answer of the witness hurts him, he may lose his case by that one point alone. Cross examiners in our courts are offen seen to lose equanimity of mind by such an answer. They pause, perhaps blush, and thus lose their control of the witness. With the really experienced lawyer, such answer, instead of appearing to surprise or disconcert him, will seem to come as a matter of course and will fall perfectly flat. He will proceed with the next question as if nothing had happened,or even perhaps give the witness an incredulous, smile, as if to say, “who do you suppose would believe that for a moment”.

        (Page 2918 in SARKAR Law of Evidence) (Lexis Nexis)
        (Note: Your (Collegue should not expose you by showing his expression at that time)
        David /Paul Brown’s Golden Rules for Cross examination (useful & valuable suggestions) (Philadelphia Bar-very experience Lawyer)
        (Page 2920, 2921 in SARKAR Law of Evidence -Lexis Nexis).
        1. Never take your eye from the witness
          (Channel of communication from mind to mind)
           
        2. Voice of the witness (Best interpreter of his mind)
        3. Be-mild with mild
          Be - Shrewd with crafty
          Be - Confiding with honest
          Be - Merciful to the young, the frail or fearful
          Be - rough to the ruffian
          - thunder-bolt to the liar
          In all this, mindful of your dignity
        4. In a criminal case especially in a capital case, So long as your cause stands well,
          1. ask few questions
          2. never ask questions which destroy your case unless you know the witness very well and know his answer would be favourable equally well
            (or)
            You prepared for the answer and destroy him.
        5. Equivocal (unclear) question should be avoided.
           
        6. If the witness to be Witty or Stubborn with you – Settle the account with him first – Don’t lose your temper.
           
        7. chess player – fix your mind upon the combinations and relations of the game – partial/temporary success – No use.
           
        8. Never under value the witness.
           
        9. Be respectful to the court- Kind to your colleague.
           
  5. Relevant provisions in Evidence Act, 1872

    Section 3: “Proved” A fact is said to be proved when, after considering the matters before it,the Court either believes it (fact) to exist
    (or)
    Considers its existence so probable that a prudent man ought, act under the circumstances of the particular case, to act upon the supposition that it exists.
    Section 4: “May Presume” Whenever it is provided by this Act that the Court may presume a fact it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
    Section 113-A “Shall Presume” A discretion has been given to a court to presume a fact (or) refuse to raise such a presumption.

    Abetment of suicide by married woman (Sect-306 IPC (may presume)

    = Court has no option but it is bound to take the fact as proved until evidence is given to disprove it.
    (Eg.) N.I.Act, P.C Act(Sections 7,11) etc.
    Section 113-B Dowry Death u/s 304-B IPC
    Section 114 Court may presume existence of certain facts.
    The court may presume the existence of any fact when it thinks likely to have happened, regard being had
    1. to the common course of natural events (a,d,g, Illustration)
    2. human conducts (b,h)
    3. Public and Private business (c,e,f,i)
    Section 59 Proof of facts by oral evidence
    All facts, except the contents of documents (or electronic records) may be proved by oral evidence.
    Section 60
    Oral evidence must be direct
    • Seen
    • Heard
    • Perceived by sense
    • Expert opinion

    • It is hearsay and inadmissible when the objects of the evidence is to establish the truth.
    • It is not hearsay and admissible when the object of the evidence is to establish the fact that it was made.
      1956(1) WLR 965,970 (Privy Council)
      (Subramanium – Vs-Publi. Pro.)

      Hearsay Evidence - Why it should be rejected?

      (2011 (2) SCC (Cri.) 741
      (Kalyan Kumar Gogoi – Vs- Ashutosh Agnihotri)
      1. No personal responsibility
      2. Not exposed to penalty for falsehood
      3. Scope for fraud
      4. Not subjected to the test of Cross examination.

        2003 (11) SCC 241
        (Pawan Kumar – Vs- State of Haryana)
        A witness inform the occurrence to the police after he was informed by the eye witness. Eye witness was examined. Therefore “A” witness’s evidence was admissible in evidence to prove the fact that after eye witness told him, he conveyed the same to police.

        Eye witness – No inference – Court alone has the power to draw inference.
        AIR 1974 SC 775 (Para 10)
        (Babuli – Vs-State of Orissa)
        Section 61 Proof of Contents of documents
        Either by Primary Evidence or by Secondary Evidence
        Section 62 Primary Evidence
        By Production of original document itself.
        Section 63 Secondary Evidence – Means and includes:
        1. Certified copies u/s 76 of Public document u/s 74
        2. Photograph of an original,
          if it is proved that the thing photographed is original, though not compared.
        3. A Copy (2) compared with a copy(1) of a letter made by a copying machine, if it is shown that the copy(1) made by the copying machine was made from the original.
        4. A Copy(2) transcribed from a copy(1), but afterwards compared with the original. It is not secondary evidence, if the copy(1) from which transcribtion was made compared with original.
        5. Oral accounts of the contents of a document given by some person who has himself seen it.


        Section 65: Secondary evidence may be given of the

        1. existence
        2. condition (or)
        3. contents of a documents in the following cases.
        1. Original with the other side (shown or appear)
          (or) Out of reach of court
        (Contents admissible) (or)
        With any person legally bound to produce but after notice u/s 66 not produced


        (Written admission admissible) (b) existence/condition/contents admitted in writing by the other side.
        (Contents admissible) (c) Original destroyed/lost/not able to produce it in reasonable time without his default (or) neglect.
        (Contents admissible) (d) Original not easily movable
        (Certified copy alone is admissible. No other secondary evidence is admissible) (e) Original is a public document u/s 74
        (f) If certified copy is permitted by this Act/any law to be given in evidence.
        (General result of the documents by a skilled person who has examined them). (g) Originals consist of numerous accounts etc, which can not conveniently be examined in court and the fact to be produced is the general result of the whole collection.

  6. In this context, the following aspects will be useful for cross examination

    1. Proof of document – Mere marking of a document is not proof of contents of documents.
      Author of the document should be examined in order to prove the contents of the document.
      2009 (9) SCC 221 (Para 37-39, 43, 45)
      (Malay Kumar Ganguly – Vs-Dr.Sukumar Mukharjee)
      2010 (4) SCC 491
      (LIC of India –Vs-Ram Pal Singh Bisen)

    2. Admissibility of a document
      1. Whether should be decided at the stage of admission itself (or)
      2. Mark it subject to objection and decide the admissibility at the end.

        Two divergent views:
        1. 2010 (8) SCC 423
          (Shalimer Chemical Works Ltd – Vs- Surendra Oil and Dal Mills)
        2. 2002 (10) SCC 529 = 2001 SCC (Cri.) 417
          (Bipin Shantilal – Vs-State of Gujarat)

    3. CCTV – Best evidence to be produced
      2015 (3) SCC (Cri.)54
      (Tomaso Bruno – Vs-State of U.P.)
      Section 114(g)

    4. Adverse inference:
      The evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. 2015 (3) SCC (Cri.) 54 (Tomaso Bruno – Vs-St. of U.P.)

      2008 (16) SCC 417 (468)
      (Noor Aga – Vs-State of Punjab)

      Although examination of independent witnesses in all situations may not be imperative, if they were material, in terms of section 114(g), an adverse inference could be drawn.
      Section 65(b)
      (Xerox copies)

      If the other side admits the same, is admissible.

      2015 (1) SCC 705
      (Zarina Siddique –Vs-A.Ramalingam)

      Invoices Xerox – Supply of T.V. admitted under that invoices – Admissible.

      2008 (2) MLJ 963 (Madras)
      (Electronics Corpn. of T.N. Ltd, -Vs-Hi-Fi Electronics Industrial Ltd).
      Section 65-B
      – Admissibility of electronic records

      65-B(4) Certificate signed by a person occupying a responsible official position in relation to the operation of the relevant device
      (or)

      The management of the relevant activities:
      1. Identifying the electronic record and describing the manner in which it was produced.
      2. Particulars of the device.
      3. Computer period – regularly used by a person control over the computer.
      4. Regularly fed into the computer in the ordinary course of business.
      5. Operating properly.
      6. Information as fed in the computer reproduces it.

        2014 (10) SCC 473 = 2015 (1) SCC (Cri.) 24
        (Anvar P.V.-Vs-P.K.Basheer)

        Para 22: An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements u/s 65-B are satisfied. Thus in the case of C.D., VCD, Chip etc, the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

        2017(3) SCC (Cri.) 663
        (Sonu @ Amar – Vs-State of Haryana)
        • Admissibility of electronic records
        • Objection regarding mode/method of proof of CDRs of mobile phones recovered from accused, ought to have been raised in the trial court itself when the electronic records were marked. It can not be raised in the appellate stage.

        2018(1) SCC (Cri.) 860
        (Shafhi Mohammed – Vs-State of H.P.)
        • If party producing electronic evidence is not in possession of device from which electronic document was produced, then such party, held can not be required to produce certificate u/s 65-B.
        • Requirement of certificate u/s 65-B being procedural, can be relaxed by court wherever interest of justice so justifies.
        • Thus requirement of certificate u/s 65-B is not always mandatory.
        Section 101 On Whom burden of proof lies
        Even in a case where the burden is on the accused, it is well known that the prosecution must prove the foundational facts.
        2009 (15) SCC 200
        (State of Maharashtra – Vs-Dnyaneshwar Laxman Rao Wankhede)
        2009 (7) SCC 104
        (Jayendra Vishnu Thakur – Vs-State of Maharashtra)
        Section 11 Alibi – Burden on the accused to prove it. Before that, prosecution must prove foundational facts. 2015(3) SCC (Cri.) 54 (Tomaso Bruno – Vs- St. of U.P.)
        Section 105 Burden of proving that case of accused comes within exceptions (IPC etc)
        (Eg.) Section 80 (Accident in doing lawful act)
        Section -83 (Child above 7 years and under 12 years immature understanding).
        Section 84 (Act of a person of unsound mind)
        Section 325 (Voluntarily causing grievous hurt) (Except in section 335)
        Section 300 (Four exceptions)
        Section 499 (10 exceptions)
        Section 106 Burden of proving fact especially within knowledge.
        2007 (1) SCC (Cri.) 732
        (Vikramjit Singh @ Vicky – Vs-State of Punjab)
        Husband & wife – car accident, wife stabbed – Both trial court & High Court applied section 106 and convicted. S.C. acquitted the husband on factual aspects that prosecution has not proved the other fact.
        (Car stopped 13 ft from main Road, information accident and Not robbery, recovery of jewels not at his instance)


  7. Examination of Witnesses

    Sections 135- 166
    Section 135 Order of production and examination of witnesses shall be regulated by the law and practice – in the absence of any such law, by the discretion of the Court.
    Section 136 Judge to decide as to admissibility of Evidence
    Section 137 Chief – Cross – Re-exam
    Section 138 Order of examination
    Chief and cross must relate to relevant facts

    • But cross need not be confined to the facts to which the witness testified on his exam – in – chief
    • In Re-examination -to explain the answer in cross
    • No new facts should be introduced
    • If new matters, then further cross with permission of court.
      2012 (2) SCC (Cri.) 1480 (Pannayar – Vs-State of Tamil Nadu)
    • Finding that there should not be any new facts introduced by the prosecution in the re-examination.
    Section 33 1997 (11) SCC 720
    and Section 306(4) Cr.P.C. (A.Devendran-Vs-State of Tamil Nadu)
    CJM granted pardon after committed – Not in accordance with law.

    1998 SCC (Cri.) 220
    (Suresh Chandra Bahri – Vs-State of Bihar)
    Session court find that approver was not examined by magistrate u/s 306(4) Cr.P.C. – Remained to magistrate – Defect rectified.

    2000 SCC (Cri.) 587
    (Remadhir Basu – Vs- State of W.B.)
    2000 SCC (Cri.) 400
    (State of H.P. – Vs- Surinder Mohan)
    Finding - In the above mention two cases the finding is that the accused has no right of cross examination u/s 306 (4) Cr.P.C.

    Due to Death, illness etc, witness could not be cross examined - Effect

    • Opportunity is available but not cross examined
    • Evidence is admissible, but its probative value may be very small and may even be disregarded depending upon the fact as to howfar and to what extent the deposition has been made.

    Therefore, it is always prudent to cross examine the witness immediately after the completion of Chief examination except u/s 231 (2) and 242(3) Cr.P.C. (Defer Cross).
    Cross examination after a long gap – Effect-Witness depose contra to chief.

    2007(1) SCC (Cri.)732 (Para 8,9,12)
    (Vikramjit Singh @ Vicky –Vs-State of Punjab) – Evidence of the witness rejected.
    2006 (2) SCC (Cri.)568
    (Nisar Khan @ Guddu) – Chief can not be rejected
    2013(3) SCC (Cri.)63
    (Akil @ Javed – Vs- State) – Chief not rejected because the witness was won over.

    Section 158: What matters may be proved in connection with proved statement relevant under section 32 or 33
    • The object of this section 158 is to expose statements to every possible means of contradictions or Corroboration in the same manner as that of a witness before court under cross examination.
    • No sanctity attaches to the statement simply because a person is dead.
    • His credibility may be impeached or confirmed in the same manner as that of a living witness.
    • The reason is the statements u/s 32 or 33 are exceptional cases and it is but just and reasonable that such statements should as far as possible be subject to the various modes of attacking or corroborating them.
      (Eg.)-A admitted u/s 32 or 33 that he saw ‘B’ at Lahore on a certain day.
    • Evidence could be given to prove that ‘A’ was in Calcutta on that day.
    Section 159 Refreshing memory – While under examination refresh his memory referring to any writing made by himself at the time of transaction (or) made by any other person and read by the witness at the time of transacting and he knew it to be correct.
    Section 161 Right of adverse party to cross examine after shown to him the writing. (If the witness refreshed his memory by seeing a document while in box).

    Questions not permissible in Cross:

    • Misleading
    • Composite
    • Unfair practice (intimidating, insulting, annoying questions (Sec.152), indecent questions (Sec. 151)
    • Repetition etc

      Suggestions in Cross – No Evidence
      AIR 1956 SC 400
      (Wasin Khan –Vs-State of U.P.)
      Legal evidence can sustain defence. Suggestion is insufficient. It may lend assurance to prosecution case.
      Questions put in Cross examination may probabilise the prosecution version.
      Though not always determine the finding against accused guilty, they are certainly Relevant.
Section 139 A person summoned to produce a document does not become a witness – NO CROSS.
Section 165 Judges’ power to put questions or order production.
CROSS with the permission of court permissible.

Prosecution did not examine a witness

As defence witness, he can be examined
AIR 1991 SC 1346
2013 (14) SCC 434 – (Rotash Kumar-Vs-St. of Haryana)

Prosecution did not mark a document:

Accused can rely upon it by marking on its side
2014 (9) SCC 365 (Ramayya – Vs-State of Karnataka)
 
Section 141 Leading questions – Meaning
A question suggesting the answer which the person putting it wishes or expects to receive.
Section 142 Chief – Re-Exam- No leading question except with permission of court
When courts permits- If it is,
  • Introductory
  • Undisputed
  • Already sufficiently proved
Section 143 CROSS – Leading questions may be asked
Section 145 Cross as to previous statement in writing
  • Cross without showing the statement to him.
  • For contradicting him, his attention must be drawn to that statement before the writing can be proved.

Contradiction by previous statement – steps to be taken fully

explained in 2015(9) SCC 588 (V.K.Mishra – Vs- St. of Uttrakhand)
The witness can not be recalled for the purpose of confronting him with his subsequent statement.
2005 SCC (Cri) 1712 (Mishrilal – Vs-State of M.P.)
 
Section 146 CROSS – Leading questions may be asked
Section 146 (Proviso) and Section 53-A Questions lawful in cross
  • to test his veracity by injuring his character
  • to discover who he is and what is his position in life.
  • to shake his credit
Not Relevant
  • For offences u/s 376, 376-A to E IPC, 354, 354A-B “Where question of consent is in issues” character, previous sexual experience with any person is not relevant.
Section 132 Witness not excused from answering on ground that answer will criminate (or) may tend directly or indirectly to criminate him (or) it will expose (or) tend directly or indirectly to expose him to a penalty or forfeiture of any kind

Proviso:
  • No arrest
  • No prosecution
  • No answer be proved against him in any criminal proceeding.
Except for prosecution for giving false evidence.
 
Section 147 When witness to be compelled to answer
  • If relates to a matter relevant  to the proceedings.
Section 148 Court to decide when question shall be asked and when witness compelled to answer.
Permissible:
  • ‘Q’ affects the credibility of the witness in the opinion of court.
    Permissible:
  • Inference that if given would be unfavourable.
    Not Permissible:
  • Q’ relating to imputation against witness remote in period of time not affecting the credibility in the opinion of court. and
  • great disproportions between importance of the imputations against character of witness and importance of the evidence.
Section 149 ‘Q’ damaging the character can not be asked without reasonable grounds.
Section 151 Indecent/Scandalous questions not permissible.
Section 152 ‘Q’ insulting/annoying the witness not permissible.
Section 155 Impeaching the credit of witness In the following ways:
  1. Unworthy of credit (By the evidence of other persons)
  2. Corrupt (Receiving money etc) to give evidence
  3. Inconsistent statements.

Additions in evidence (Material parts not stated in section 161 Cr.P.C.)

2000 (3) Scale 102
(Anil Kumar – Vs- State of Punjab)
JT 2000 (8) SC 25 (Para 3)
(Tarun @ Gautam Mukherjee – Vs-State of W.B.)
2004 SCC (Cri.) 1954
Rudrappa Ramappa Jainpur –Vs-St. of Karnataka
 
Section 154 Hostile – Question by party to his own witness with permission of court.

2010 (9) SCC 567) (C.Muniappan – Vs-St.of Tamil Nadu)
Any part of evidence can be used by  Prosecution and Defence.

Written By: R.Rajarathinam - Advocate & Former Public Prosecutor, High Court, Madras

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