CRITICAL ANALYSIS OF GOVERNING PRINCIPLES OF CROSS-EXAMINATION

Introduction

The term ‘cross-examination’ plays an integral role in the justice distribution system of India. In
both, trial of Sessions case and Civil Case including Motor Accident Claims, cross-examination
of a witness has played a predominant role in proceedings of a trial. Proper handling of the case
while cross-examination is taking place is a true test for a trial judge. The testimonies provided
by the witnesses are considered important pieces evidence in a court of law since they are the
direct observers of an act. Section 135-165 of the Indian Evidence Act, 1872 (hereinafter referred
to as the Act) deals with the provisions related to examination and cross-examination of a
witness. Several relevant provisions have been mentioned by the researcher in the article.

ADMISSIBILITY OF EVIDENCE

The evidence is only admissible on the grounds of it corroborating with a relevant set of issues
(Section 5 of the Act). The judges can question the parties involved regarding the same if deems
fit and shall proceed after the same has been established (Section 136).

ORDER OF EXAMINATION

The witnesses are examined and cross-examined as per section 138 of the Act in three parts:

Firstly, the party who has called the witness examines him/her. This process is called
examination-in-chief as mention in section 137. Further, the opposite party cross-examines the
witness by asking relevant questions based on facts relevant to the case which are not just
restricted to the questions put up by the first party. Later, if the party who had called the witness
feels the need, they can question the witness one more time and the same is called re-
examination of the witness. If any discrepancies are evident from the re-examination, the
opposite party can cross-examine the witnesses even further.

The testimony of the witness has to be prima facie acceptable in the court to proceed with cross-
examination.1 The process must take place strictly as per the order specified in section 138 of the
Act.2

1
Ghulam Rasool Khan v. Wali Khan, AIR 1983 J K 54.
2
Sharadamma v. Rechamma, AIR 2007 Kant 17
LEADING QUESTIONS

Leading questions (The questions which may manipulate the witness to answer and concede to
what the examining party wants) are strictly prohibited in a court of law (Section 141) but can be
permitted if the judge agrees with section 142 and 143. Moreover, leading questions are
permitted if the facts of the case are introductory and undisputed in the eyes of the court.3

QUESTIONING OF THE WITNESS

Apart from the questions that are asked in the aforementioned scenario, a witness can be further
questioned based on the truthfulness and accuracy of his statements and to understand their
credibility and position in life.4 After a relevant case is established, the witness shall not be
excused from answering just for the mere fact that the significant answer may lead to his/her
arrest or several other punitive measures.5 But here, a relevant fact to be considered is that the
prerogative lies upon the court as to whether a witness can be compelled to answer. 6 The only
point to be affirmed here is that the facts must be relevant to the issue as to whether the witness
must be trusted.7

Moreover, the question that has the potential to expose or jeopardize the character of a witness
must be only asked on reasonable grounds.8 If the concerned lawyer fails to abide by reasonable
grounds, he may be reported and shall remain answerable to the concerned High Court or any
other relevant court to which he is a subject. 9 Lastly, a scandalous or indecent question is
forbidden in the eyes of law and the same must not hinder with the character and wellbeing of
the witness.10

CORROBORATION OF EVIDENCE

Sometimes, the relevant set of facts may not be enough to prove the case for either party.
Therefore, section 156 allows several other questions that may not be directly associated with the

3
Varkey Joseph v. State of Kerela, AIR 1960 Ker 301.
4
S. 146, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
5
S. 138, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
6
S. 148, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
7
Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal, (1915) 17 BOMLR 484.
8
S. 149, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
9
S. 150, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
10
S. 151, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
case at hand but may help in proving a point for either party. Moreover, previous statements
given by the concerned witness can be used later to corroborate with the present set of facts
(section 157). For example, a girl’s statements given to her mother after being raped can be
corroborated with her statements later in a court of law, to establish her case.11

Lastly, we as humans have limited retention and control over our memory and therefore, the Act
has been wholesome enough to make sure that the witness can refresh their memory while under
examination in whatever way it deems fit.12 While refreshing, if the witness refers to any
documents, the same has to be testified within a concerned court. 13 Lastly, if the opposite part
requires, the document used for reference and refreshing of memory, must be provided to them
as per their convenience.14

Though the aforementioned governing principles of law portray a very transparent and
wholesome image, it is a matter of fact that the law has to align with the principles that led to its
creation, when taking effect on the very ground level. When the Sessions Court is taken into
consideration, the pleadings are not the case that the cross-examination can be subjected to a
specific defense. This makes the accused to take a maximum of defenses and makes it an ordeal
to the trial judge while recording the witnesses in the Sessions/Criminal Cases during cross-
examination.

While the burden of staying proactive lies with the judge during the recording of evidence,
he/she is accustomed to several confrontations regards to the admissibility of questions put to the
witness in regards to the admissibility of the questions put to the witnesses. It is widely expected
for the judge to remain as a silent spectator while the process of examination and cross-
examination is happening. Often is the case that the questions which mutually crush the defense
of the parties involved are put to the witnesses. Precisely, the main objective of meeting the ends
of the justice is disregarded and the parties involved take a completely diverted trajectory which
they are not accustomed to.15 Hence an attempt has been made to critically analyze the governing

11
Rameshwar v. State of Rajasthan, 1952 AIR 54.
12
S. 159, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
13
S. 160, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
14
S. 161, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
15
Jst. A.K.A Rahman, The Cross Examination and Role of Courts- A Review, TAMIL NADU STATE JUDICIAL
ACADEMY, (August 6, 2020, 1:54 PM ), http://tnsja.tn.gov.in/article/08%20A%20K%20A%20Rahmaan%20THE
%20CROSS%20EXAMINATION%20AND%20ROLE%20OF%20COURTS%20corrected.pdf.
principles of the laws about cross-examination under the Indian Evidence Act as well as the role
of courts in ensuring that the ends of justice are duly met.

Critical Analysis of Legal Provisions Related to Cross-Examination

Post a detailed discussion of law, the researcher has divided the topic at hand into three main
issues which would help the researcher in structuring the arguments about criticisms of Cross-
Examination under the Indian Evidence Act, 1872. The researcher has attempted to address all
three issues in detail to critically analyze the aforementioned provisions.

Issue-1) Whether there is any concrete provision under the Indian Evidence Act, 1872, to pre-
empt unsavory attempts to harass witnesses during cross examination?

Issue-2)Whether there is any provision under Indian Evidence Act, 1872 to check and to stop
piecemeal, dilatory and long cross-examinations, which are repeatedly criticized by Hon’ble
Supreme Court?

Issue-3) What is the role of trial courts and judges in cases where they face such statutory
vacuum or abeyance?

Issue 1

The Sessions Court does not work by hard and fast rule regarding putting up questions to the
witness. However, the courts have to ensure that the cross-examination is not conductedto satisfy
the accused to the extent of harassment of witnesses. The role of the judges comes into play in
the sessions court in regards to the cross-examination of the witness in the Sessions Cases as they
are supposed to be proactive during the proceedings.

Sampat Kumar & Ors. v. State by Periyanaicken Palayam P.S. 16 is a landmark judgment given
by the Hon’ble Division Bench of the Madras HC which has exposed the situation of affairs in
the Sessions cases where the witnesses are exposed to harassment in the garb of cross-
examination. The researcher has attempted to summarize the relevant paragraphs which address
the aforementioned issue and come across as an alarming bell for the judges who are dealing
with Sessions Cases or are likely to deal with the same in the future.

16
CDJ 2017 MHC 154.
Paragraph 53 of the judgment makes it clear that how the accused has conducted himself in the
present case, it tantamount to highly condemnable and deplorable behavior. The case had been
pending before the Court of Sessions since 2011. Since the accused chose to not cooperate, the
case remained pending for more than 4 years in the trial court. The framing of charges occurred
finally on 29.01.15, while the witnesses (PW.1 to 6) were examined in the month of May.
According to the reports acquired from the trial court, on the date of examination, the counsel for
A1 to A11 had been absent. The counsel for A12 to A23 was present but they refused to proceed
with the cross-examination. Counsel for A24 to A27 was also absent in a similar manner. Later
PW1 had been recalled and cross examined on 22.05.15 vide an order given because of the
application dated 15.05.15.He was cross examined by the counsel for A12 to A23 and the
process of cross examination began at 10:45 a.m. A 15 pages long cross examination ended at
1:30. Post lunch, the same person was cross examined by counsel for A24 to A27 and the same
continued till 5:30 making it a 12 pages long testimony. The counsel for A1 to A11 did not
cross-examine the concerned person that day but later approached the High Court regarding the
same and as per the orders of the HC, PW1 was cross examined on 27.08.15 which runs through
another 16 pages making it to a total of 45 pages. Judges acknowledged that they had properly
read the entire document of cross examination but could not find anything elicited in the favor of
the accused during cross examination irrespective of the length of the text. They also stated that
many questions had the characteristic of harassing the witness which reflects as if there is no law
to govern the process of cross examination. The counsel had shown clear ignorance towards the
fact that the Indian Evidence Act authorizes questions which are lawful in nature and draws a
clear demarcation between the questions compelled and refused to be answered by the witness.
Moreover, the counsel had ignored the scenario as to when a witness can be compelled to answer
before a court. There was clear lack of responsibility on the part of the learned counsel as he
conveniently chose to overlook the statutory mandates contained in the Indian Evidence Act. The
judges concluded by stating that a plethora of unnecessary and scandalous questions led to the
harassment of PW1 in the concerned matter.17

Paragraph 54 of the aforementioned case delineates upon the matter even further. It states that
similarly, PW2 had not implicated any of the accused in chief examination and therefore was
considered hostile. But, the defense did not cross examine him on the same day. After the chief
17
Id.
examination, he was recalled by the counsel of A12 to A23 and A24 to 27 on 20.05.15. A careful
analysis of the process of cross examination of this witness proves that this is a clear case of
harassment. He had not been cross examined by the counsel for A1 to A11 on the same day. The
majority of questions though appearing to be relevant are unnecessary and scandalous. Similarly
PW3 was examined in chief on 4.05.15 but was not cross examined on the same date by any of
the counsels and without any pertinent reason whatsoever. This continued delay is the case with
all the witnesses. On being questioned by the court on the ignorance of the basic ethics of the
profession of a lawyer in the garb of cross examination, the lawyer had nothing but a sad sense
of expressing delineating his unreasonableness. Moreover, when he was asked about the concrete
substantives that he may have found during the process of cross examination that would make
the case of the accused stronger, he had nothing substantial to provide. This makes it clear that
the questions brought nothing but harassment to the witnesses in the concerned matter.

The Judge in the concerned matter has given his personal opinion on the aforementioned issue by
stating in paragraph 55 that the days have gone when the examination and cross-examination
would happen on the same day ensuring fullest cooperation with the trial courts. The
aforementioned scenario is the best example of how the attitudes of some counsels have changed
in recent times as they use this platform as a tool for harassment. A sense of anguish is clear on
the part of the Judges while judging the instant matter. It was absolutely impractical for the
judges to be the silent spectator while the witnesses were getting harassed. Moreover they
elucidate that the justice delivery system cannot be taken for a ride by anyone and the war waged
against such unscrupulous people must come to end one day.

The above observations of Their Lordships can be considered as an eye-opener for majority
stakeholders and especially the Judicial Officers presiding over the Sessions Cases. If the
decision gets its due credit, then a positive change can surely be foreseen in the near future. Now
having discussed the issue no. 1, the researcher will be adverting to issue no 2&3.

Issue 2

In so far the process of cross-examination is concerned it is an established fact that the lawyers
from both sides try to prolong the conclusion of the trial by having engaged into piece-meal or
slow cross-examination. In order to answer issue no. 2, there is no clear or a conspicuous
provision under Indian Evidence Act, 1872, dealing directly with the pervasive problem of piece-
meal cross examination, thus here the role of trial court judges becomes important as they are
forced to face such statutory vacuum. The trend of piecemeal cross-examination was severely
criticized by the Honorable Supreme Court in the case of Vinod Kumar v. State of Punjab18,
wherein Supreme Court laid down strict guidelines for the trial court judges. One of the
guidelines was that the cross-examination should be completed the same day it is started, or to
the most it can be extended to the next day not beyond that. Here the author is extracting a
relevant paragraph of the judgment for the better understanding-

The trial courts are expected in law to follow the command of the procedure relating to trial and
not yield to the request of the counsel to grant an adjournment for non-acceptable reasons. In
fact, it is not all appreciable to call a witness for cross-examination after such a long span of
time. It is imperative if the examination-in-chief is over, the cross-examination should be
completed on the same day. If the examination of a witness continues till late hours the trial can
be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-
examination should be deferred for such a long time. It is anathema to the concept of a proper
and fair trial. The duty of the court is to see that not only the interest of the accused as per law is
protected but also the societal and collective interest is safeguarded. It is distressing to note that
despite a series of judgments of this Court, the habit of granting the adjournment, really an
ailment, continues. How long shall we say, “Awake Arise”. There is a constant discomfort.
Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief
Justices of all the High Courts for circulating the same among the learned trial Judges with a
command to follow the principles relating to the trial in a requisite manner and not to defer the
cross-examination of a witness at their pleasure or at the leisure of the defense counsel, for it
eventually makes the trial an apology for trial and compels the whole society to suffer chicanery.
Let it be remembered that law cannot be allowed to be lonely; a destitute.

The emphasis of the Honorable Supreme Court was on the factor of delay caused due to
protracted cross-examination which proved to be an anathema to a fair trial. Supreme Court
mandated that the cross-examination should be concluded the same day on which chief-
examination is concluded. This judgment of the Supreme Court was circulated to all the judicial
18
CDJ 2015 SC 11.
officers and the authorities of subordinate judiciary. It is a good-sound judgment hence it should
be followed by all the judges of the subordinate judges. It thus fills the statutory vacuum19.

Invariably it is seen that cross-examination is conducted for greater length. The main purpose of
cross-examination is to elicit the truth from the witnesses. It is not a play of tongue twister. if
there is some falsehood present in the statement of the witness then it can be culled out by proper
cross-examination. The trial judge must be cautious and should try to repeal all or any repetitive
questions. If there is any question asked previously then it must not be allowed to be repeated as
it would waste a lot of the court’s precious time. Trial judges must be alert to pre-empt such
instances. Also most importantly when a pleader proffers a question while cross-examination to a
witness and obtains an answer which is contrary to his previous stand, then the pleader should
play safe by stopping at this point. Thus this gives evidence that the witness has resoled from his
previous stand which could be challenged in the arguments. However, the pleader chooses to
engage in a dilatory process and he is further asked questions which are of course irrelevant. In
all probability, this results in loss of huge time which could be avoided. The subsequent stand
taken by the witness who is contradictory to his previous one, he would be barred from changing
his stand by virtue of the doctrine of estoppels. This doctrine plays an important role in
impeaching the credibility of witness. This can be substantiated during the time allotted for
arguments however the pleader takes on the witness with incessant wasteful questioning.

Issue No. 3- Hereinbefore we discussed certain loopholes in the statutory regime. The Indian
Evidence Act, 1872 lacks provision to cover areas relating to harassment of witnesses and to
counter piecemeal cross-examination. It is a known fact that the there is always an attempt by the
lawyers to continuously harass witnesses to elicit truth. Same happens with the piece-meal cross
examination done by the lawyer. It is trite to note that lawyer go for piecemeal cross
examination, they even go innumerable and incessant adjournments. The researcher has
discussed a few judgments, wherein it was mandated that the cross-examination should end on
the day which it is started. Also in that judgment Supreme Court noted that as there is a statutory
vacuum it is the duty of the trial judge that to ensure that no harassment should be caused to the
witnesses and should ensure that cross-examination should end the day it starts. Court should
also disallow any unnecessary adjournments. Here for this purpose the author would like to

19
Sadhu Saran Singh v. State Of U.P. And Ors., (2016) 2 SCC (Cri) 275.
accentuate the observation of Mishra Dipak J. He opined that 20 If a person is questioned, what
afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two
reasons that can be considered extremely significant are, first, procrastination of trial because of
the witness not being available when there is a conduction of trial and secondly, unwarranted
adjournments that the counsel aims while the process of trial conduction and the non-
understandable reasons of such prayers for adjournments by the trial courts, despite a command
of the statute under Section 309 of the Code of Criminal Procedure, 1973 (Cr.P.C) and series of
judicial opinions by this Court. What was an ailment at one time, with the outflow of time, has
metamorphosed into non-benignancy. What was a mere disturbance back in the days has become
a disorder currently. Herein the trial Judges have to play an important role and this research
paper put forwards some Do’s and Don’ts for the judges to be kept in mind while the
examination and cross-examination is done.

Do’s-

1) The Court shall firstly perceive the capacity of witnesses to understand the questions put to
them;

2) The Courts should take note of any bias that a witness might have;

3) The Court should try to take note of admission of untruthfulness;

4) The Court shall note the prior statements and subsequent statements and try to look for
consistencies and inconsistencies.

5) The Court shall stop the cross-examination the moment the witness contradicts as it will save
a lot of time of the Honorable court and

6) The Court should use its enormous power given under section 165 of Indian Evidence Act,
1872, to put the house in order.

Don’ts

20
Vinod Kumar vs State Of Punjab on 23 September, 2014, CRIMINAL APPELLATE
JURISDICTIONCRIMINAL APPEAL NO. 554 OF 2012 (SUPREME COURT).
1) The Court is not bound to draw inferences from the demeanor or behavioral manifestation of
the witnesses;

2) The court should not give undue weight to the demeanor of the witness, whether he is looking
nervous, hesitant, and reluctant to tell the truth. Honorable Delhi High Court in the case of
Kishan Lal Gupta vs Dujodwala Industries And Ors 21- opined that- The impressions are bound to
fade with the passage of time especially when a judge is busy noting the demeanor of witnesses
day after day in our other cases. And these become utterly useless in a piecemeal trial spread
over a long period of time where various judges come to record the evidence and the judge
deciding the case, perhaps, having no advantage of looking at the demeanor of witnesses; and

3) The judges should not get carried away by emotions and they should try to maintain
neutrality;

CONCLUSION

Hence it is abundantly clear that there are a few loopholes in the statutory regime governing
examinations and cross-examination. For this purpose as we have seen, there is no provision
relating to dilatory tactics engaged by some counsel with unnecessarily dragging a cross-
examination. Our Honorable Supreme Court has laid down certain guidelines that could be used
in filling the statutory vacuum. The judgments discussed above puts a lot of onerous
responsibility on the trial judge. It is envisioned by the judgment that a trial judge should be
vigilant and alert. The examination in chief is a simple task. However, the real litmus test which
a judge has to pass is the phase of cross-examination. It is expected of a trial court judge to
religiously follow the mandate of section 165 of Indian Evidence Act, 1872. They should by
virtue of section 165 put relevant questions to both sides and stop any attempts of harassing a
witness or delaying examinations. It should not stand as a mute spectator. The trial judges should
also try to put the house in order. Judges should understand that the purpose of noting demeanor
of a witness is to assess the truthfulness of a testimony given a judicial proceeding to prove or
disprove a fact. It must also be borne in mind by the honorable judges that litigants cannot plead
ignorance of law. At this juncture it has become incumbent on the author to cite the maxim
“Ignorantia facti excusat, ignorantia juris non excusat”, which means ignorance of law can be

21
I.L.R 1976 Delhi 422.
an excuse however ignorance of law cannot be. The court of law must be circumspect while
rendering justice, although a judge is bestowed with a lot of discretion in the matter of facts and
circumstance; however he should listen to his conscience and wisdom. The judges should also
warn the litigants of the consequences which they might have to face if they engage in some
dilatory or unconscionable activities. Moreover, the responsibility even lies on the litigants that
they should be vigilant and aware of their rights. Hence litigants should also perform their duties
with due diligence. The responsibility lies on all the stake holders of this game that their actions
should not cause any nuisance to anyone or it should not result in a miscarriage of justice.
Lastly, the Act itself has been brought for the lawyers to do their jobs in a responsible manner,
therefore the management of attitudes and understanding of duty should be ensured by the
lawyers today ensuring that the cross examination happens with relevant and proper proceedings.
A positive step is necessary towards ensuring that the process of cross-examination does not
become a ground for harassment of the concerned witnesses and this is something that has to be
ensured by the judges by the means of their proactive nature and attitude.