Cross Examination in Criminal Cases: A Practical Analysis of Common Mistakes that Lawyers Make!

SYNOPSIS:

This article covers the webinar conducted by Senior Advocate Mr.Ramesh Gupta, who is known for his work as defense counsel in the BMW (Sanjeev Nanda) Hit and Run case. The webinar titled 'Cross Examination in Criminal Cases: A Practical Analysis of Common Mistakes that Lawyers Make!' covers in detailed the minute points relating cross examination that a lawyer should always remember while cross examining. The session was truly enlightening and informative.

INTRODUCTION:

Sir starts the webinar by making a very significant observation that cross-examination is not just an art by its also a science. This practice is not based on our whims and fancies but is based on laws. Our criminal system is based on evidence, based on which, a person is either acquitted or convicted. This remains same for prosecution, defense, police, complainants. Thus, Sir states that the whole jurisprudence is based on evidence hence it is imperative to understand about evidence and principles relating to it before we dwell into Cross-examination.

INDIAN EVIDENCE ACT:

What is evidence?

Evidence has been defined under s.3 of the Indian Evidence Act, 1872.

'Evidence' means and includes -

1.  all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence.
2.  all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

Hence there two types of evidence: oral and documentary.

Onus of the prosecution/complainant is graver than accused/defendant to prove beyond reasonable doubt. Onus on defendant is less if he shows any probability of his innocence. If the defense is able to put even a slight dent to the prosecution’s case, then benefit of doubt can be applied to formers case. But law says that the doubt should not be fancy but should be strong and realistic. Sir says that 'prosecution has to build a strong wall to prove their case, while the defense has to remove a few bricks from the wall to be able to put a dent in that case. The bricks should not be removed from top or bottom, but from the center so as to shatter its basic structure.'

What are the tools available with the defense?

The investigation is started by the police and charge sheet is filed after collection of evidence. During this whole process the accused is not involved anywhere. After collection of evidence a charge sheet is filed and the accused can be put into custody. Police does not consider any thing said by the accused so as to show that he is innocent and therefore the defense evidence comes at the latter stages of the trial. The Supreme Court in Bahubai vs State of UP has stated that 'Conduct of proper and fair investigation is the hallmark of any criminal investigation' and that IO should collect evidence either in favor of accused or complainant. So, we can move an application before the filing of charge sheet that IO shall collect evidence. Hence, considering all of this it can be clearly stated that the only tool available with the defense to discredit prosecution’s case is cross-examination, even if there is a statutory presumption available like that as under the Negotiable Instruments Act section 139 that if complainant proves the case the onus shifts on the accused to disprove the case, yet even in section 138 cases the accused has to only prove his case till the prosecution stage and establish that complainant is not representing the truth, then the onus shifts on the defense.

Types of evidence?

Oral evidence: When the proof is restricted to spoken words or by gestures or motion then it is termed as oral evidence. Oral evidence, when reliable, is adequate without narration or written proof to demonstrate a reality or fact. Section 59 and 60 of the India Evidence Act mainly deals with oral evidence. Other than that, there are many sections in the act that also deals with oral evidence such as section 22 and 22A deals with oral admissions and chapter 6 of the Indian evidence act which deals with the exclusion of oral by documentary evidence. Statements under Section 164 and 161 of CRPC are previous statements of a witness and so they are inadmissible if recorded during investigation.

Anything that can be seen, smell, heard, those evidence are also admissible in court of law, by the oral admission of the person. Although, hearsay statement is not admissible. Under hearsay evidence, the witness tells the court about what he had heard from somebody but has not seen anything or experienced anything by him.

Documentary evidence: Any evidence which is present as a document before the court in order to demonstrate or show a reality. While reading s.60 and further, Sir points out while an evidence is being exhibited, the counsel or anyone else has to raise objections to that evidence at the very first instance, as the same wont be available afterwards in the trial. Sir refers so sections 61, 62, 63 in order to understand primary and secondary evidence. Primary evidence is considered as the evidence which is given in several parts like duplicate copies or as counterpart like those which is signed by the parties or photocopy of the document whereas, Secondary evidence contains certified copies, that have been made by the same mechanical process and also contain counterparts of the document against the parties.

Can examination-in-chief of a person, whose cross examination has not been conducted, be termed as oral evidence?

The answer to this question is no. Sir tells that unless his evidence is complete, that is examination-in-chief along with cross examination, and then witness is discharged, then only that evidence will be termed as evidence.

Further Sir tells that when a statement is recorded under s.164 of a witness and that witness fails to appear in court, the statement won’t be termed as evidence since it is a past statement. Hence, statement under s.164 has no evidentiary value unless a victim comes to the court and makes a deposition. Evidence of eyewitness has to be form of examination-in-chief and cross, re-examination.

Evidence through electrical medium:

Under the Indian Evidence Act, s.65A and 65B deals with evidence in electronic format.

The question of admissibility of electronic evidence was first raised in the case of State v. Mohd. Afzal, and then later in the case of State (NCT of Delhi) v. Navjot Sandhu, where the SC held that 'even if the requirements under section 65B(4) were not satisfied, evidence could be produced under sections 63 and 65 of the Evidence Act'. But this judgement was overruled by PV Anwar v. PK Basheer where the SC rejected the view taken previously that the sections 61-65 of the Evidence Act can be used when the conditions mentioned under section 65B were not met. The Court applied the principle of generalia specialibus non derogant. Therefore, the Court held that while sections 61-65 deal with the general documentary evidence, section 65B refers to one special component- electronic records. Therefore, it was held that electronic evidence can only be dealt with under section 65B.

1. Under s.118 of the Evidence Act it is state that, 'All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.' Hence, even a child witness can give evidence if he understands the circumstances.
2. Sir then moves on to talk about section 137 and 138. S.137 describes examination-in-chief as examination of the witness by the party who calls him. Cross-examination is defined as the witness by the adverse party. Re-examination is defined as the examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

Sir points out that one should always be careful as to what question to ask and not ask while cross-examination, as even one single wrong step can result in the whole case of accused being ruined.

CODE OF CRIMINAL PROCEDURE:

1. Sir talks about section 161 and 162 and says that these are important sections. S.162 deals with examination of witness by police. S.162 talks about statements to police not to be signed and use of statements as evidence. Sir points out an important part in the section which is ' provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination'.
2. Sir then talks about the concept of ‘previous statement’. the statement recorded under section 164 of the Code is previous statement of the witness. Sir stated that any statement which has been reduced to writing which has been given by a witness under 161 or any other statement, it is called a previous statement. S.162 shows how to use section 161 or 145. Statements recorded by SGMs can also be termed as previous statement. And their confrontation will be according 162 of Evidence Act. 
3. Sir points out that there is no point in cross-examining witnesses which yield no purposes. It is always advisable to cross examine those whose examination can lead to the demolition of prosecution’s case.
4. Sir also talks about the infamous 1999-Delhi hit-and-run case, of which he was a part of the defense counsel. In early morning of 10th January, a car hit around 5-6 people. The car was speeding and later the car was traced with the help of number plate. An FIR was filed eventually. After 5 days an eyewitness comes up. Now the problem was that Prosecution was unable to show that accused Sanjeev was actually driving the car. Defense could take the defense either that yet he was driving, by they were the ones who were standing on the road or they could take the defense that Sanjeev was not driving the car at all so that the onus shifts on the prosecution to prove that Sanjeev was driving. Sir said that the defense adopted the later scenario as it was better to accept since the car at the scene of crim clearly belonged to the accused. The eyewitness was dropped eventually, and the trial went on. The prosecution tried to weave a story of the accused getting out of the car and examining the scene but this whole assumption was demolished by the defense counsel. Sir explains how police tend to introduce eyewitnesses’ weeks and days later which usually mean that they are false eyewitnesses. Sir also stated that in accident cases site plan plays an important role. The positioning of eye witness should be seen on the site plan and then cross should be done.
5. Sir talks about s.172 and 173 which talks about cases diaries which basically states that a police officer is supposed to maintain a case diary. He also notes that this is hardly maintained.
6. Sir noted a very important point. He said that if the counsel wants to ask any question from a witness regarding a particular point, it has to be done during the cross examination only because if this is not done then it will be assumed that the point has been accepted by the counsels. This principle includes improvement, contradiction and omission. Minor improvements, contradictions and omissions are excusable but major ones are not. Also, one witness cannot be confronted by the statement of another witness.
7. Thereafter Sir elaborated on the TI parade that is the Test Identification Parade which is an important part of defense. Recover memo is also regarded as previous statement and can be use for confronting the accused.

JUDGEMENTS:

1. Sukhwant Singh v. State of Punjab (MANU SC/305/1995): Evidence cannot be accepted by a witness until and unless cross and chief examination both happen.
2. Chaudhari Ramjibhai v. State of Gujarat (MANU SC/0899/2003): The one witness cannot be confronted by the statement of another witness
3. Kanu Ambu Vish v. State of Maharashtra (AIR 1971 SC 2256): Any statement used in the panchnama cannot be used in the statement except for the purpose of contradicting the witness. Panchanama statement is also previous statement.
4. Tehsildar Singh v. state of UP (MANU SC 53/1959): Judgement on omission of a material fact by the witness. 
5. Badri v. State of Rajasthan (1976 SCR (2) 339): Another judgement on omission. Minor omissions not important, major omission is important.
6. VK Mishra v. State of Uttarakhand (CRIMINAL APPEAL NO.1247 OF 2012): Cross examination of IO
7. Manu Sharma v. State (NCT of Delhi)
8. Swaran Singh v. State of Punjab (1957 AIR 637): If you don’t cross examine a point, it means you are admitting it.
9. Sat Pal v. State of Delhi Administration (1976 AIR 294): Leading questions. Concentrate on para 37, 41, 42, 45 and 53.
10. Ravi Kumar v. State of Rajasthan (RLW 2008 (1) Raj 647): Accident cases. Eyewitness and their credibility as they tend to see after accident happens.
11. Eyewitness and Rashomon effect. Evidence by expert should not be touched upon and if it is needed, then the cross shall be prepared with the help of another expert.
12. Kishan Pal v state (MANU  D 235 2004) by J. DK Jain and J Sikri
13. Johnson v. State( MANU D 753 2012)  

CONCLUSION:

The session was extremely informative as sir did not just teach about the theoretical aspect of Cross-Examination, he also taught us about the practical intricacies which was very helpful for practicing lawyers and future lawyers as well. It is extremely crucial that along with theoretical knowledge, we also have the practical knowledge. On behalf of the LCI team, we thank Adv. Ramesh Gupta Sir for joining us for the webinar and enriching us with such knowledge!

Also Read: Presentation on "Cross Examination in Criminal Cases: A Practical Analysis of Common Mistakes that Lawyers Make!" by Adv. Ramesh Gupta