“Nothing an advocate does is simple, but of all the things an advocate must do, by far the most difficult, the most complex, and the most subtle is cross-examination.”
– Marcus Tullius Cicero[[1]]
INTRODUCTION
As far back as humankind has been known, it has been comprised of both the good and the bad. Where there is a right, there is a wrong, and where there is a wrong, there is a remedy.[[2]] With the discovery of crimes, the law had come into existence. Humans have progressed a lot since then, but the Court of Law has remained to be the major recourse people turn to upon facing any unfairness and exploitation. Thus, it is imperative for the Court to conduct a fair trial, keeping in view the facts of the case and their legal implications. Cross-examination of a witness is arguably the most crucial component in this pursuance of justice.
WHAT IS CROSS-EXAMINATION?
Cross-examination refers to the examination of the testimony given by the witness through questioning of statements and analysis of evidence, to further extract facts, and determine their validity and the course of action thereupon. The practice of Cross-examination may be said to date as far back as the beginning of civilizations. There is no distinct origin of such that one can pinpoint, but the impressions thereof may be seen reflected throughout history. An example may be the Socratic form of discussion whereby the truth of theories is gleaned through a series of open-ended questions. Humans are curious creatures and the enquiry of subjects is the most basic way to know more about them. This practice has been employed by and has evolved through various schools of thought and different fields. Through the law, it has been made to the statute books as well.
CROSS-EXAMINATION IN INDIA
In India, Sections 135-156 of the Indian Evidence Act, 1872 (hereinafter, the Evidence Act) deal with the provisions of the examination and the cross-examination of the witness. Section 135 thereof states that the process of testification and its analysis shall be regulated by the law, and in the absence of any appropriate law, by the Court. Section 5 of the Evidence Act mentions that such evidence shall only be admissible upon its relevance to the case, and Section 136 confers the authority of determining such pertinence to the Judge. Section 137 lays down the procedure:
- Examination-in-chief– The examination of a witness by the party who calls them. It is also known as the chief examination.
- Cross-examination– The examination of a witness by the opposite party. It can also be considered the crux of the trial where the facts and evidence are evaluated and verified. Most of the court arguments take place at this point only.
- Re-examination– The examination of a witness, after the cross-examination, by the party that has summoned them. This is usually done to settle any inconsistencies that may have been exposed through cross-examination, or if the witness has turned hostile.
Section 138 of the Evidence Act mentions the sequence in which the above actions shall be conducted i.e., a witness shall first be chiefly examined, then cross-examined, and lastly re-examined, if the respective parties ask for such. This order had been elucidated in the case of Smt. Sharadamma v Smt. Kenchamma, 2006[[3]], where the Karnataka High Court had held that “cross-examination follows chief-examination, but not without chief-examination. If there is no chief-examination, there is no cross-examination.” Section 139 declares that a person may be summoned to produce a document but the mere performance of such shall not make them available for being cross-examined unless they appear as a witness themself. However, an expert who had evaluated the content credibility of documentary evidence may be called forth for cross-examination of their report, as had happened in the case of State of Himachal Pradesh v Jai Lal and Ors., 1999[[4]]. During a trial, the examination-in-chief brings forward one side of the case while the cross-examination illuminates the other. It may lead to either the construction of the case in the favour of the party i.e., the constructive approach, or the destruction of the testimonial credibility by the adverse party i.e., the destructive approach. It is the conclusion that has been derived hereupon the one that shall play the dominant role in deciding the final judgement of the case.
CASE LAWS IN CROSS-EXAMINATION
It is hardly disputable that the practice of cross-examination holds paramount importance in court proceedings. Some judgements that have helped explain, clarify, and shape it have been:
Varkey Joseph v State of Kerala, 1960[[5]]– The accused had been a 16-year-old boy convicted of murder in the Sessions Court and had been sentenced to rigorous imprisonment for life. An appeal thereof had been made to the High Court where discrepancies in the witnesses’ testimonies had been noted, upon which cross-examination to disclose further had been allowed even if the introductory facts had already been substantially proved. Later, the High Court had altered the conviction from IPC Section 302 murder to IPC Section 326 grievous hurt and had decreased the sentence to five years of rigorous imprisonment.
Ghulam Rasool Khan v Wali Khan, 1982[[6]]– The Trial Court had held that the defendant shall only be allowed to cross-examine orally if the Court accepts his cross-interrogatories in writing. Aggrieved, the defendant had come up to the High Court, where it had revised the impugned order, declaring that it depends upon the party whether it wants to cross-examine in the oral or written form.
Atul Bora v Akan Bora, 2006[[7]]– In this miscellaneous application, the election petitioner had sought permission to cross-examine its own witness, submitting that such witness needs to be further questioned to extract the truth. Despite the objection by the respondent that such ‘stage of examination’ had not yet been reached and that the witness had not been ‘hostile’, the Court had observed that Section 154 of the Evidence Act does not specify any such stage of examination or determine terms such as ‘hostile witness’, and that it was up to the Court to allow permission of such examination of the witness by its own party.
Bombay Cotton Manufacturing Co. v V.R.B. Motilal Shivlal, 1915[[8]]– The Bombay High Court had made an important observation that the purpose of cross-examination is limited to credit or discredit the testimony and the witness shall only be questioned on the facts relevant to the case. Cross-examination shall not be used to compel a witness to answer any questions that may criminalize him in any manner, and he is granted due protection by the statute to not be prosecuted based on his statements.
Muhammad Mian v Emperor, 1919[[9]]– The Patna High Court had declared that indecent or scandalous questions shall only be allowed if such is necessary to evaluate a relevant issue in the case. As per Section 152 of the Evidence Act, the Court has the discretion to forbid any such questions, which despite being proper, may come across as offensive in its view.
K.K. Velusamy v N. Palaanisamy, 2011[[10]]– The Supreme Court had stated that a witness cannot be recalled just to fill up gaps and cover leftover aspects in the facts, explaining in Para 9 that “The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have regarding the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined.” The Court had referenced this from Ram Rati v Mange Ram (D) Thr Lrs. and Ors, 2016[[11]]. Vinoth Kumar v State of Punjab, 2014[[12]]– The practice of piecemeal cross-examination i.e., seeking adjournment before the cross-examination, had been condemned by the Honourable Supreme Court and the guidelines regarding the same had been issued that “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.”
WHAT MAKES AN EFFECTIVE CROSS-EXAMINATION?
There is hardly any doubt in the fact that the legal system of India is marred with red-tapism. There are several redundant and elaborate procedures to be followed before a case even makes it to the Court, and equal, if not a greater number of such when it comes to the trial. The practice of cross-examination, as had been laid down in the statute books, may ideally be correct in theory, but unfortunately, it has hardly been as effective in practice, or the lack thereof. The exponential increase in the number of cases knocking on the doors of the Court each passing day, by calculation, leaves a lesser time allotted for each of them to be tended to. Oftentimes, the proceedings either get wrapped quick or get prolonged way too long, owing to the lack of time availability. Such a situation leads to ineffective cross-examination, also known as ‘piece-meal’ cross-examination; and it is a no-brainer that an ineffective examination shall lead to an ineffective judgement. One way to avoid such a predicament shall be that the legal representative takes cognizance of this fact and plan the case. A well-made case with all the facts and arguments prepared in advance shall save the time of the Court. There must be scope for flexibility and improvisation as well because the proceedings are as unpredictable as they go and may take unexpected turns at each stage. A comprehensive case aligned to the points one seeks to establish shall provide clarity, ease the burden of the Court, and lead to fast results. Another way is a meticulous observation. Careful listening and analysis of the statements as soon as possible are essential for an effective cross-examination as this is where one shall be able to glean any inconsistency, loopholes, or blind spots thereof that may be exploited to emphasize, oppose, or unravel any point. One shall focus on asking questions or reaffirming points that lead towards a rationale. A passive and non-interactive repetition of the facts is just a waste of time and gives nothing out of itself to add to a conclusion. Only through active questioning and verification of facts being connected shall help in proving one’s side. Cross-examination is inarguably an art of oration, entirely up to the skill one has in steering the interaction as favourable to one’s motive as one can. This may require employing tactics like asking easy questions first to later catch the witness off-guard, rephrasing the sentence in a more targeted way to narrow the scope of a generic reply, back-tracking the current statements with different testimonies and evidence already submitted, and so on.
CONCLUSION
Court proceedings are extensive and time-consuming. Many a time that leads to long pauses and hindrances in conducting a proper cross-examination. Aside from waiting and urging the Court to take a substantial decision to remedy this, a legal representative, an Advocate or otherwise, shall also work on perfecting the art of cross-examination to make the most out of it. Keeping the cross-examination brief, to the point, simple and without any open-ended questions or vagueness shall make it a lot more effective as well as efficient. The practice of cross-examination is vital and indispensable in a trial, hence, it is a shame that many times, it is prolonged or hastened to draw improper reasoning and manoeuvre the implication thereof for mala fide purposes. The Court must take cognizance of all these necessities, depending upon the facts of the case, and facilitate timely and fair cross-examination to reach a timely and fair judgement.
Author(s) Name: Shruti Sinha (Government Law College, Mumbai)
References:
[1] Marcus Tullius Cicero, Letters of Marcus Tullius Cicero to Titus Pomponius Atticus (Oxford University 1825)
[2] Latin maxim ubi jus ibi remedium
[3] Smt. Sharadamma v Smt. Kenchamma, AIR 2007 KER 17
[4] State of Himachal Pradesh v Jai Lal (1999) 7 SCC 280
[5] Varkey Joseph v State of Kerala, AIR 1960 Ker 301
[6] Ghulam Rasool Khan v Wali Khan, AIR 1983 J K 54
[7] Atul Bora v Akan Bora, AIR 2007 Gau 51
[8] Bombay Cotton Manufacturing Co. v V.R.B. Motilal Shivlal (1915) 17 BOMLR 484
[9] Mahammad Mian v Emperor, 52 Ind Cas 54
[10] K.K. Velusamy v N. Palaanisamy, 2011 (11) SCC 275
[11] Ram Rati v Mange Ram, AIR 2016 SC 1343
[12] Vinoth Kumar v State of Punjab (2015) 3 SCC 220
