DR.
RAM MANOHAR LOHIYA
NATIONAL LAW UNIVERSITY,
LUCKNOW
‘BHARATIYA SAKHSYA ADHINIYAM’
Final Draft
on
‘Cross-Examination of Witnesses under the Purview of
Bharatiya Sakshya Adhiniyam’
Under supervision of: Submitted by:
Dr. Vipul Vinod Niharika
(Assistant Professor) 220101091
Dept. Of Law Semester- V
RMLNLU, Lucknow. Section- A
ACKNOWLEDGEMENT
Firstly, I would like to thank Mr. Vipul Vinod for giving me such a golden
opportunity to show my skills, though my project.
The project is the result of extensive ultrapure study; hard work and labour, put
into make it worth reading.
I wish to acknowledge that I completed this project by receiving help of my
friends and teacher. His class lectures helped me immense to gather relevant
information. This project couldn’t be completed without the help of my university
library Dr. Madhu Limaye library and through university’s internet. I am also
very thankful to my batch mates for supporting me to tackle every stumbling
block in my way.
NIHARIKA
Table Of Contents
● Introduction
● Stages or the interrogation of a witness
● Examination-in-chief
● Documents used in the examination-in-chief of a witness.
● Improper questions in examination-in-chief
● Method in examination-in-chief
● Cross-examination
⮚ Right of cross-examining the witness
⮚ Object of cross-examination
⮚ Persons who may be cross-examined
⮚ Recall for further examination and cross-examination.
⮚ Fundamental rules of the art of cross-examination
⮚ Every question in cross-examination must be asked with an object.
● Appreciation of evidence
● Privilege and liability of legal practitioner
● Conclusion
● Bibliography
Introduction:-
Chapter X of the Bharatiya Sakshya Adhiniyam deals with the Examination of Witnesses. It is
evident that the examination of witnesses is one of the crucial stages of criminal trial, for the
Courts determine the guilt of the accused on the basis of the testimony of witnesses in most
cases. Section 140 to section 168 provides for the entire process of examination of witnesses.
The oral examination of witnesses during the trial is one of the most interesting and popular
aspects of Law as a profession. It is indeed an art to coax out the truth out of witnesses. A trial
lawyer is thus an artist. There are various rules and case laws which deal with the examination
of witnesses.
The object of cross-examination is to impeach the accuracy, credibility and general value of
the evidence given in chief; to sift the facts already stated by the witness, to detect and expose
discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining
party. Cross-examination, though a very powerful, is also a very dangerous engine. It is a
double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed. It
has been held in the case of Maganlal Vs. King Emperor that the examination of a witness
by the adverse party shall be called his cross-examination. The purpose of the cross-
examination is to test the veracity of the witness. No evidence affecting a party is admissible
against that party unless the latter has had an opportunity of testing its truthfulness by cross-
examination.
The Indian legal system has inherited a veritable heritage of cross-examination techniques
from the days of British colonial rule, this system has many advantages and disadvantages, one
advantage being that confessions under coercive measures are not necessary if the cross-
examiner is skilled to bring out the truth; a major disadvantage is that witnesses can be tutored
and a good liar in the docket can mislead the Court. However, on a day-to-day basis, the system
has been successful and feasible in the democratic manner that fits our nation.
Stages or The Interrogation of a Witness:-
Section 143 does not deal with admissibility of evidence, but merely lays down three processes
to which a witness may be subjected in order to obtain from him his full evidence.1 The
Evidence Act follows the English common law procedure of the examination of witness. The
party calling the witness examines him first, and this is called the examination-in-chief. Then
the opposite party tests the credit and veracity of the witness, and this is called the cross-
examination. After this, the party calling the witness has again the right of questioning the
witness with a view to enable the witness to explain anything which may have been elicited
from him on cross-examination. The examination of the witness is concluded in this manner
before the next witness is called by the party leading the evidence.
Examination-In-Chief:-
The evidence of witness shall be taken in open court in the presence and under the personal
direction and superintendence of the judge. Witness may also be examined by the
commissioner appointed by the court. After a witness is sworn or affirmed he is first examined
by the party calling him. This is known as examination –in-chief. It must be remembered that
witnesses must speak to facts not to opinions, interferences, or belief. The object of this
examination is to get from the witness all material facts within his knowledge relating to the
party’s case. The examination of a witness by the party calling the witness is called
"examination-in-chief" or "direct examination". The examination-in-chief must obtain from the
witness all that the witness knows in the party's favour, he is bound to complete his examination
on all the desired topics before the opponent's cross-examination begins.
There are, however, certain matters which are neither facts in issue, nor "relevant" in the sense
in which the word "relevant" is used in the Act, as to which a witness may be questioned in
examination-in-chief. Thus, a witness may be questioned as to any circumstance which he
observed at or near to the time or place at which a relevant fact to which he has deposed
occurred.2 Any former statement by a witness relating to the fact as to which he has deposed,
made at or about the time when the fact took place, or before any authority legally competent
to investigate the fact, may be proved.3 If a statement relevant under section 26 or 27 has been
proved in the case, all matters may be proved either in order to contradict or to corroborate it,
1
Laxman Chandra Ghose v. E., 1984 C 278.
2
Section 156.
3
Section 157.
or in order to impeach, or confirm the credit of the person by whom it was made, which might
have been proved if that person had been called as a witness and denied upon cross-examination
that truth of the matter suggested.4
Documents Used In The Examination-In-Chief Of A Witness:-
In proving the examination of a document, the document must be formally put in evidence and
read to the judge before the close of the direct examination of the proving witness; otherwise a
party might unfairly postpone putting in the document until the witness had left the witness-
box, and the opponent would thus be deprived of the opportunity of cross-examining the
witness as to its contents. A witness may depose to facts, or while so deposing, may refresh his
memory by referring to any document made by himself or read by him at the time of, or soon
after the transaction concerning which he is examined5 but in, such a case the document must
be produced and shown to the adverse party, so that, if he please he may cross-examine the
witness thereupon6.
Improper Questions In Examination-In-Chief:-
A witness cannot be asked leading question in examination-in-chief, nor such question as
assume facts to have been proved which have not been proved. So also a compound question,
one part of which is admissible and the other inadmissible may rightly be excluded as a whole.
The Court may forbid any question or inquiries which it regards as indecent or scandalous,
although such questions and inquiries may have some bearing on the questions before the Court
unless they relate to facts in issue, or to matters necessary to be known in order to determine
whether or not the facts in issue existed.7 The Court may, in its discretion, permit the party who
calls a witness to put any questions to him which might be put in cross-examination by the
adverse party.8
Method In Examination-In-Chief:-
4
Section 158
5
Sections 159 and 160
6
Section 161.
7
Section 151.
8
Section 154.
The faculty of interrogating a witness is unquestionably one of the arcane of the legal
profession, and in most instances, at best can only be attained after years of forensic experience.
In direct examination, although mediocrity is more easily attainable, it may be a question
whether the highest degree of excellence is not even still ore rare. For it requires mental powers
of no inferior order so to interrogate each witness, whether learned or unlearned, intelligent or
dull, matter-off act or imaginative, single-minded or designing as to bring his story before the
tribunal in the most natural, comprehensible, and effective form.
. In criminal cases the duty of counsel for the prosecution is wider. It is the practice, and
probably the duty, of a prosecuting counsel to ask a witness question favourable to the prisoner:
for he must lay all the material evidence before the Court whether it tells in favour of the
prisoner or not and not unduly press for conviction.
The following are David Paul Brown's "Golden Rules for the Examination of Witnesses".
1. If they are bold, and may injure your cause by pertness or forwardness, observe a gravity
and ceremony of manner towards them which may be calculated to repress their assurance.
2. If they are alarmed or diffident, and their thoughts are evidently scattered commence your
examination with matters of a familiar character remotely connected with the subject of their
alarm or the matter in issue, as for instance, "Where do you live?", "Do you know the parties?",
"How long have you known them?", and the like. And when you have restored them to their
composure, and the mind has regained its equilibrium, proceed to the more essential feature
of the case, being careful to be mild and distinct in your approaches lest you again trouble the
fountain from which you are to drink.
3. If the evidence of your own witnesses be unfavourable to you (which should always be
carefully guarded against), exhibit no want of composure, for there are many minds that form
opinions of the nature or character of testimony chiefly from the effect which it may appear to
produce upon the counsel.
4. If you perceive that the mind of the witness is imbued with prejudices against your client,
hope but little from such a quarter, unless there be some facts which are essential to your
client's protection and which that witness alone can prove; either do not call him or get rid of
him as soon as possible. If the opposite counsel perceives the bias to which I have referred, he
may employ it to your own ruin. In judicial inquiries, of all possible evils, the worst and the
hardest to resist is an enemy in the disguise of a friend. You cannot impeach him; you cannot
cross-examine him; you cannot disarm him: you cannot indirectly even assail him: and if you
exercise the only privilege that is left to you and call other witnesses for the purposes of
explanation, you must bear in mind that, instead of carrying the war into the enemy country,
the struggle is still between section of your own force and in the very heart, of our own camp.
Avoid this by all means.
5. Never call a witness whom your adversary will be compelled to call. This will afford you the
privilege of cross-examination,-take from your opponent the same privilege it thus gives to
you,-and, in addition thereto, not only render everything unfavourable said by the witness
doubly operative against the party calling him, but also deprive that party of the power of
counteracting the effect of the testimony.
6. Never ask a question without an object, not without being able to connect that object with
the case, if objected to as irrelevant.
7. Be careful not to put your question in such a shape that, if opposed for informality, you
cannot sustain it, or at all events, produce strong reason in its support. Frequent failure in the
discussion of points of evidence enfeeble your strength in the estimation of the jury, and greatly
impair your hopes in the final result.
8. Never object to a question from your adversary without being able and disposed to enforce
the objection. Nothing is so monstrous as to be constantly making and withdrawing objection;
it either indicates a want of correct perception in making them, or a deficiency of real or of
moral courage in not making them good.
9. Speak to your witness clearly and distinctly, as if your were awake and engaged in a matter
of interest and make him also speak distinctly and to your question. How can it be supposed
that the Court and jury will be inclined to listen, when the only struggle seems to be whether
the counsel or the witness shall first go to sleep?
10. Modulate your voice as circumstance may direct. "Inspire the fearful and repress the bold."
11. Never begin before you are ready, and always finish when you have done. In other words,
do not question for question's sake, but for an answer.
Cross-Examination:-
Interrogation of a witness by the opposite party is called "cross-examination." Cross-
examination is peculiarly a product of the English procedure, and in the time of Bentham was
completely absent in other system of procedure, grounded upon the Roman. It is a vital feature
of all modern system of evidence and, in the words of Professor Wigmore, "the greatest legal
engine ever invented for the discovery of truth".
The power and opportunity to cross-examination is one of the principal tests which the law has
devised for the ascertainment of truth, and this is certainly a most efficacious test. By this
means the situation of the witness with respect to the parties and the subject of litigation, his
interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain
knowledge of the facts to which he bears testimony, the manner in which he has used those
means, his powers of discerning facts in the first instance and his capacity for retaining and
describing them, are fully investigated and ascertained, and submitted to the consideration of
the jury, who have an opportunity of observing the manner and demeanour of the witness,-
circumstances which are often of high importance as the answers themselves.
It is well established rule of evidence that a party should put to each of its opponent's witness
so much of his case as concerns that particular witness.9
● Right Of Cross-Examining the Witness:-
The Supreme Court observed that the part of the statement of witness was not cross-examined
by the accused. In the absence of the cross-examination on the explanation of delay the
evidence of the witnesses remained, unchallenged and ought to have been believed by the High
Court, section 143 of the Bharatiya Sakshya Adhiniyam confers a valuable right of cross-
examining the witnesses tendered in evidence by the opposite party. The scope of that provision
is enlarged by section 149 of the Bharatiya Sakshya Adhiniyam by allowing a witness to be
questioned-
1. to test his veracity,
2. to discover who he is and what is his position in life, or
3. to shake his credit by injuring his character, although the answer to such question might tend
directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose
him to a penalty or forfeiture. This aspect, the Supreme Court added was unfortunately missed
9
Mahant Mela Ram v. S.G.P. Committee, Amritsar, AIR 1992 P&H 252
by the High Court when it came to the conclusion that explanation for delay is not at all
convincing.
● Object Of Cross-Examination:-
The object of cross-examination is two-fold: (i) to bring out desirable fact of the case modifying
the examination- in-chief or establishing the cross-examiner's own case, and (ii) to impeach the
credit of the witnesses.
● Persons Who May Be Cross-Examined:-
A person merely summoned to produce a document need not be sworn and if not sworn, he
cannot be cross-examined.10 If a witness be sworn under a mistake and the mistake be
discovered before the examination-in-chief has substantially begun no cross-examination will
be allowed.
● Recall For Further Examination And Cross-Examination:-
The Judge may, at any stage of the trial, either at his own instance or that of a party, recall a
witness for further examination or cross-examination though after a party's case is closed, this
will only be allowed under special circumstances.
● Fundamental Rules Of The Art Of Cross-Examination:-
It is beyond the scope of the present treatise to say anything about the art of cross-examination,
beyond its theory and function in the examination of witnesses, it requires considerable forensic
experience and intelligence to make a right use of this great instrument for the discovery of
truth. Whereas cross-examination is the most powerful weapon in the hands of a practised
advocate, it is a very dangerous, although a very tempting one, in the hands of the novice. It is
a double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed,11
10
Section 139.
11
Naba Kumar Das v. Rudhra Narayan Juna, AIR 1923 PC 95 (97)
so it should be used carefully. It is one of the art of the cross examiner who makes the witness
to reveals out something which is in favour of the cross-examiner.
● Every Question In Cross-Examination Must Be Asked With An Object:-
The course of cross-examination to be pursued in each particular case should be subordinate to
the plan which the advocate has formed in his mind for the conduct of it. It has been stated in
certain book that in order to achieve something useful and to gain its benefit every work must
be planned with having some objects and goals to achieve. Illicit and useless questions might
dis-gushed the court.
Appreciation Of Evidence:-
The evidence produced by the witness during the cross examination must be appreciated.
During examination of the witnesses the real truth of the offence committed evolves out of the
fact. But the Supreme Court has observed that it shall not be a sound rule of appreciation of
evidence to pick up an answer from the cross- examination of witness and draw inference
taking it in isolation. The court must see as to how much the testimony of the witness is and
how it relates to the other evidences.12
Privilege And Liability Of Legal Practitioner:-
Counsel pleading a case has the privilege to argue that the complainant and the witnesses are
unreliable. But he will not be justified in making a personal attack upon the complainant or
witnesses on matters not borne out by the record, or in using language which is abusive or
obscene or in making obscene or vulgar gestures in Court.13
CONCLUSION
Thus, it can be concluded in light of the cases and authorities cited above that the art of cross-
examination is indeed a formidable discipline, in which academic knowledge can only triumph
12
Boramma v. Krishna Godwa, (2000) 9 SCC 214
13
Harbano Kaur v. P.C. Chaturvedi, (1969) 3 SCC 712: 1969 Cri App R (SC) 394.
with practical experience. The latitude and limits of cross-examination and the objections to
depositions have been covered in this project, as has been the various rules of cross-
examination of witnesses. The Indian legal system has inherited a veritable heritage of cross-
examination techniques from the days of British colonial rule, this system has many advantages
and disadvantages, one advantage being that confessions under coercive measures are not
necessary if the cross-examiner is skilled to bring out the truth; a major disadvantage is that
witnesses can be tutored and a good liar in the docket can mislead the Court. However, on a
day-to-day basis, the system has been successful and feasible in the democratic manner that
fits our nation.
BIBILIOGRAPHY
1. Sarkar, Law of Evidence, 16th Edn. Wadhwa and Co. (Reprint, 2008: Nagpur)
2. Chief Justice M. Monir, Law of Evidence, 14th Edn. Universal Law Publishing Co. Pvt.
Ltd. (2006: Delhi)
3. Woodroffe & Amir Ali, Law of Evidence, 17th Edn., LexisNexis Butterworths (2002:
New Delhi)
4. Ratanlal & Dhirajlal, The Law of Evidence, 22nd Edn. LexisNexis Butterworths
Wadhwa Nagpur (Gurgaon: Reprint 2009)
