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 evidences 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 in accordance with 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 in order to proceed
with cross-examination.1 The process must take place strictly in accordance with the order
specified in section 138 of the Act.2

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 is of the same opinion in accordance 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 with
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

1
Ghulam Rasool Khan v. Wali Khan, AIR 1983 J K 54.
2
Sharadamma v. Rechamma, AIR 2007 Kant 17
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.
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 which may not be directly associated with
the 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 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 a 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 by 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 be in consonance with the principles
that led to its creation, when taking effect on the very ground level. When the Sessions Court are
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 maximum of defenses and makes
it 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

10
S. 151, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872.
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.
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 themselves are not accustomed to.15 Hence an attempt has been made to critically analyze
the governing principles of the laws pertaining to cross examination under the Indian Evidence
Act as well as 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 pertaining to criticisms of
Cross Examination under the Indian Evidence Act, 1872. The researcher has made an attempt to
address all three issues in detail in order 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 of questions to the
witness. However, the courts have to ensure that the cross examination is not conducted in order
to 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 be proactive during the proceedings.

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.
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 made an attempt to summarize the relevant paragraphs which
address the aforementioned issue and comes across as an alarming bell for the judges who are
dealing with Sessions Cases or are likely to deal with the same in future.

Paragraph 53 of the judgment makes it clear that the way in which 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 were
present but they refused to proceed with the cross examination. Counsel for A24 to A27 were
also absent in the similar manner. Later PW1 had been recalled and cross examined on 22.05.15
vide an order given because of 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-examined 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 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
16
CDJ 2017 MHC 154.
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 chief
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.
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.

17
Id.
The above observations of Their Lordships can be considered as an eye-opener for majority stake
holders and specially 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 the 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 adjournment for non-acceptable reasons. In
fact, it is not all appreciable to call a witness for cross-examination after such along 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 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 safe-guarded. It is distressing to note
that despite series of judgments of this Court, the habit of granting 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

18
CDJ 2015 SC 11.
Justices of all the High Courts for circulating the same among the learned trial Judges with a
command to follow the principles relating to 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 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 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
officers and the authorities of subordinate judiciary. It is a good-sound judgment hence it should
be followed by all the judges of 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 truth from the witnesses. It is not a play of tongue twister. if there is
some falsehood apparently 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 repel all or any
repetitive question. If there is any question asked previously then it must not be allowed to be
repeated as it would waste a lot of 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
resiled 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 which is contradictory to his previous one, he would be
barred or estoped from changing his stand by virtue of 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.

19
Sadhu Saran Singh v. State Of U.P. And Ors., (2016) 2 SCC (Cri) 275.
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 author 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 accentuate the
observation of Mishra Dipak J. He opined that 20 “If one is asked a question, what afflicts the
legally requisite criminal trial in its conceptual eventuality in this country the two reasons that
may earn the status of phenomenal signification are, first, procrastination of trial due to non-
availability of witnesses when the trial is in progress and second, unwarranted adjournments
sought by the counsel conducting the trial and the unfathomable reasons for acceptation of
such prayers for adjournments by the trial courts, despite a statutory command under Section
309 of the Code of Criminal Procedure, 1973 (Cr.P.C) and series of pronouncements by this
Court. What was a malady at one time, with the efflux of time, has metamorphosed into
malignancy. What was a mere disturbance once has become a disorder, a diseased one, at
present”. 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) Court shall firstly perceive the capacity of witnesses to understand the questions put to them;

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

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

20
Vinod Kumar vs State Of Punjab on 23 September, 2014, CRIMINAL APPELLATE
JURISDICTIONCRIMINAL APPEAL NO. 554 OF 2012 (SUPREME COURT).
4) Court shall note the prior statements and subsequent statements and try to look for
consistencies and inconsistencies.

5) 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

1) 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 demeanour
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 demeanour 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 drag 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

21
I.L.R 1976 Delhi 422.
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 the 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
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 act
should not cause any nuisance to anyone or it should not result in miscarriage of justice. Lastly,
the Act itself has been brought for the lawyers to do their jobs in a responsible manner, therefore
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 ensured by
the judges as well by the means of their proactive nature.