Cross Examination of Witness

Introduction

To dispense Justice, it is of great importance to test the veracity of a witness. Once we decide upon the competency of a witness the next step is their examination. This is an indispensable part of court proceedings as it aids the court in finding the truth.

• Section 137 of Indian Evidence Act, 1872 (IEA) defines Cross Examination as the examination of a witness by the adverse party.

Types and Order of Examination

• There are three types of examination and Section 138 of the IEA provides the order of examination which is as follows:
  • Examination In Chief
  • Cross Examination
  • Re Examination

Object of Cross Examination

• The purpose of cross Examination is to test the veracity of the witness by impeaching his credit.
• Cross Examination is often treated as a power tool by which the defense can extract truth from the falsehood in the evidence of a witness.

Questions Relevant in Cross Examination

• According to Section 138 of the IEA, the Cross Examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
• As per Section 143 of the IEA leading Questions (any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question) can be asked in Cross Examination.
• Section 146 of IEA allows following questions to be asked in Cross Examination:
  • Questions to test his veracity.
  • Questions to discover who he is and what is his position in life.
  • Questions to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
  • Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code, 1860 or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

Can A Party Cross Examine His Own Witness

• Yes, a party can cross examine his own witness and the related provision is Section 154 of IEA.
• This section deals with the question by party to his own witness. It states that -

(1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under sub-section    (1), to rely on any part of the evidence of such witness.

Effects On Testimony in Certain Cases

• Where No Cross Examination Takes Place:
  • When a fact is stated in the Examination in Chief and there is no Cross Examination thereafter it is presumed that the other party accepts it as true unless the evidence appears to be unreliable on the face of it.
• No Opportunity Given to Cross Examine a Witness:
  • If no opportunity is given to cross-examine a witness his evidence must not be considered.
• Where Witness Does Not Appear for Cross Examination:
  • In the case of Gopal Sarvan v. Satya Narayan (1988), the Supreme Court observed that if a witness, after being examined in chief does not appear for Cross Examination, no value can be attached to his testimony.
• No Cross Examination in Certain Cases:
  • There can be no cross examination where a person is simply called to produce a document as provided by virtue of Section 139 of IEA.
  • Section 139 deals with the Cross-examination of person called to produce a document. It states that a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.