Art of cross-examination

Purpose of Cross –examination:- We should know that cross-examination is the most intelligent device evolved by the human civilization, during experience of centuries. This is a great wisdom of our legal system. To say, if a man comes to report to a court that he has seen A killing B by shooting with revolver at evening on a particular date. Then how we will know or court will know to believe the version of the so-called eye witness. The witness may be true or he may be false. There are several reasons to say falsehood or say truth. A witness may say falsehood due to enmity, greed or to implicate somebody with ulterior motives. So, a witness can be believed only if the passes his examination of truth through cross-examination.

Therefore, the word examination is introduced that means that witness has to pass an examination of truth before the court. This process is done by giving an opportunity to the opposite party to ask such questions which challenges his veracity. Such questions are put up regarding his interestedness , being partisan, bribery , or friendship or enmity. Such questions may be about his previous statement and about this conduct before, during and after the incident happened. These question should not be absurd or scandalous or arbitrary.

There  should always be some basis of questions during cross-examination. If the witness reply satisfactorily then the court may declare them reliable witness, but he fails the cross examination, then his testimony is of no consequence.

So, there are no fix questions for cross-examination. Questions to cross examine a witness varies from case to case and man to man.  The age, position, status, expression in court, experience, qualification and expertise etc. are the subject to cross examination. Questions gets  changed as per the response of the witness on the spot. The testimony of the child witness is normally not believed without corroboration because he can be tutored. But testimony of an adult man , if reliable, is sufficient to convict an accused. 

Chapter X of evidence Act 1872, deals with examination and cross examination of witnesses before court of law. The relevant sections are section 136 to Section 166 of the evidence Act. Section 137 tells about examination in-chief and cross –examination of a witnesses.

Basics of Examination of a witness in court : -

The examination of a witness who calls him  is called  as ‘Examination: –in –chief’. After Examination-in-chief, the examination of the witness by an opposite party is called ‘Cross-examination’. The examination of a witness subsequent to Cross-examination is called Re-examination. The Re-examination can be made to explain a matter stated in Examination-in-chief and if some new matter is narrated in Re-examination the adverse party can again cross examine about new matters.

Q.What is leading question?

Ans: Any question suggesting a answer which the person putting it wishes or expects to receive is called leading question (Sec. 141).

Q.What type of the question can be asked in cross –examinations.

Ans: The fallowing question can be asked during cross –examination.  1) To test his veracity. 2) to test who he is and what is his position in life. 3) To shake his credit by insuring his  character.

Note:- Remember there is however exception to these questions in cases relating  to offences u/s 376 (D) , 376 (e)  or attempt to Please see proviso to section 146 of the evidence Act. The two types of the question should not be asked without reasonable ground about the imputation or character of the witness.  If any such question is asked without reasonable grounds matter can be reported to High Court. ( Section 150. Similarly questions which are insult to the witness can not be asked.

Q. How to cross-examine about the previous statement & writing of a witness?

Ans: A witness may be cross examined as to his previous statement made by him in writing or reduced into writing by attracting his attention to that position which is intended to be contradicted (S. 145).

For example, a witness has made a FIR, Statement to practice, he can be asked why he has not made such statement before police at the time of preparing of FIR or statement.

Q. Can a party cross-examine his own witness?

Ans: Yes , when a witness turns hostile and makes a statement against the party who calls him then he can be cross examine by his own party- with the permission of the court, about the fact tha he is won over or bribed.Gene

Objection sustained & Objection over-ruled:

Generally, whenever there is leading question in examination-in-chief, the defense lawyer says "Objection may lord' which means the prosecution is asking a leading questions which he is not allowed to ask as per evidence act. If same fit true in the circumstance of the case, court says 'Objection sustained' which means 'Okay...objection is allowed..prosecution can not ask this question. Whenever, court find that objection by defense lawyer is not correct and should be struck down then court says 'Objection over-ruled' means...'Okay..prosecution may proceed with the witness on the current question as objection is set aside'. 

Evidence  in Court :  Court can fix date for giving evidence by the party.  So the first thing to be remembered is that the facts which are judicially noticeable need not be proved. For example, if there is a notification, that the family court can hear particular type of cases then this fact need not be proved. Then, the facts which are admitted by the both the parties need not be proved because they are known as admitted facts.

Evidence given in court are of two types. Firstly, oral evidence and secondly documentary evidence. If a witness says that he has seen a particular incidents by this own eyes, he has to state that fact before the court and this evidence should be direct.  If a witness says that he has heard some body telling something, he may state that fact before the court. Normally, the opinion of the witness does not matter in court. But if a witness is an expert then his opinion is taken as evidence. In certain matters, the written opinion of the expert witness is sufficient for example opinion of a forensic expert is sufficient and expert need not be called to prove unless ordered by the court.  This is section 59 & 60 of Evidence Act.

The second type of evidence is known as documentary evidence and for this section 61, 62, 64, 65, 65 A, 65 B of the evidence acts are relevant and should be read.  In this connection, the content of the documents may be proved by primary evidence or secondary evidence.  Primary evidence means the original documents produced before the court for inspection. If the document is in several parts, each page is primary evidence and if the copies of the documents are produced simultaneously, then each copy is primary evidence and the documents have to be proved by a person who has written it or a witness of the documents or typed it.

Secondary evidence means, certified copy of the documents or copies of original by mechanical processes. In cases of secondary evidence can be given if the original are lost or destroyed or in the possession of the opposite party. Electronic record can be proved, as per the section 65 B of the evidence act.

Remember that electronic of 5 year old records or ordinary  documents of 30 years old presumes to be correct as there is presumption of such documents. If a person says that he has heard somebody that he has seen an incident such hearsay evidence is not admissible in evidence.

 What type of document/ articles  to be produced in civil case or in a criminal case  ? : -

If an agreement is made, then its agreement. If sale is made then sale-deed. If a contract is made, then contract document. If loan is given, then promissory note or loan agreement etc. In a tenancy case, a  rent agreement has to be produced. For that matter, those document on which the civil claim is based has to be produced by the party claiming it.  if a loan payment is already made, then either the opposite party should produce the receipt of the payment or oral evidence regarding payments.

In a claim for possession of a field of a house or flat then concerned paper, title deeds, Khasra, khatauni, loan book should be produced to show the title.  These documents are normally produced along with the plaint, or after the order of the court to produce documents.

In  a criminal case the prosecution side or the police use to produce documents such as FIR, statement by witnesses, spot map, photos, forensic evidence, weapons used, cloths and such other articles along with the Challan. 

Note: Prosecution witness are marked as P-1 and defense witness are marked a D-1 in criminal trial. Similarly, for documents produced by prosecution will be marked as exhibit P-1 and documents produced by defense will be marked D-1.  Remember when there is any contradiction or omission in P-1 is noticed by defense lawyer then the defense laywer can mark the document and give it to court marking  the same document as exhibit D-1 or similar numbering.

What is omission and contradiction in evidence or Trail ?

Ans: first we take an example  of contradiction in evidence.  We take a police case as example. In a pollice case, during investigation, police record statements of the witnesses who are related to incident or has seen the incidents that is known as police statement. In court, when that witness appears and gives statement is termed as prosecution witness. For example, when a witness says in police statement meant that he has seen Mr. B beating with lathhi but in court he says that he has seen B beating with fists ansd chappals this is contradiction.

So, the cross-examining lawyer will contradict him attacting his attention to the sentence that he has said in his previous police statement that he has seen A beating with Axe and if he denies then that sentence will be marked as A to A in the police statement. This police statmsent may be marked as exhibit D-1  or whatever it is from A to  A and it is a defense document.  In the same statement, that witness has not said some thing in previous statement that he has seen A beating B with Lathi and Chappals this fact is known as omission and will be asked in cross-examination and will be recorded in his statement. This contradiction and omission both.

If a witness is called by prosecution to give evidence and turned hostile the prosecutor with permission of court can declare the witness hostile and exhibit his own statment to show that he is a false witness. A party calling a witness can this way cross examine his own witness.

Omission or contradiction are highlighted at the time of cross –examination only by the cross –examine lawyer.

Normally, examination in chief and cross examination are made in the same day unless allowed to be withheld with the court for some other date.

Preparation for cross-examination : -

The defense lawyer should prepare himself for cross examination  in advance. He should read the whole challan, FIR, police statements, seizure memo, forensic report and all police documents. He should also knew the ingredients of the offense with which the accused is charged. He should also prepared his defense in the case. So that he will be ready for pointing out omission and contradiction during examination in chief.

Remember : That if  a defense lawyer fails to point out ‘omission and contradiction’ during his cross-examination then he will not be allowed to point out this in future. So be careful on this point as it the Biggest Art.   In case the witness is re-examine the future, the defense lawyer will have opportunity to cross-examine  the witness to point of omission and contradiction.

In cross examination, the truthfulness of the witness is challenged by  asking questions about his status in life,  his previous conduct, of conviction etc. for example a question may be asked for the given example.

The police chanllan some business man under 13 public gambling Act they were found gambling in a corner of a village plate form at 11 P.M. night and they were 9 in numbers. The inspector raided with his party and seized playing cards and Rupees 9,000/- on FUD. The inspector has given his statement and an independent witness Jaganaath Prasad also supported his evidence. The questions asked from IO were similar as the statement of prototypes.

Questions from Independent witness Jaganath Prasad were like this  by the defense lawyer : -

Mr. Prasad how you reach on the plateform at 11 P.M. in night? 

Ans: - Sir, I reached to plateform for taking Tea as train was about to come and at that time Tea stall remain open on platform.

How you accompanied the IO ?

Ans : Sir, I know the SO, already so he asked me to accompany him. I accompanied him.

When you reach the spot and what have you seen?

Sir, I saw that 9 businessman were playing cards with the stake of money.

What business man have what types of cards  and what type of gambling was going on? 

Ans: it was Teen Patti.

What was the stake?

Ans : I don’t know .

What happened when you reached? 

Business man throw the cards and fled away.

Have you gamble yourself?

Ans : No sir.

Then how you say that it was gamble ?  

Ans: Because Daroga Says so.  I myself have no idea.

Do you are previously convicted in Satta case by police?

(Note at this stage lawyers shows some previous judgement to the witness) :

Ans: Witness says : Yes I was convicted once.

Are you a police witness  and police always?

Ans: Only in some case

Result : Court disbelief the witness. Acquittal.

Regards

Ambrish