"Justice will overtake fabricators of lies and false witnesses" - Heraclitus

Introduction:
Cross-examination is an integral aspect of the legal process that allows lawyers to elicit crucial information and challenge the credibility and reliability of witnesses during trial proceedings. It serves as a powerful tool in the hands of skilled advocates, enabling them to present their case persuasively and effectively challenge the opposing party's evidence. By strategically questioning witnesses from the opposing side, lawyers can unveil inconsistencies, weaknesses, and biases, thereby strengthening their own arguments and undermining the opposing side's claims.

In this article, we will explore practical tips for conducting a successful cross-examination of witnesses. We will discuss the benefits of cross-examination as an essential component of trial advocacy and provide valuable insights on how to master this art form. Whether you are a seasoned lawyer looking to refine your skills or a young one embarking on your first cross-examination, this guide aims to equip you with the necessary tools to navigate this critical stage of trial proceedings with confidence and poise.

Benefits of Cross-Examination:

• Challenging Witness Credibility:
  Cross-examination allows lawyers to challenge the credibility of witnesses by exposing inconsistencies, biases, or hidden motives. By carefully scrutinizing their testimony, lawyers can cast doubt on the reliability of the witness's account, potentially discrediting their entire narrative.
   
• Testing Witness Recollection:
  Through cross-examination, lawyers can probe the memory and recollection of witnesses. This process helps evaluate the accuracy and consistency of their statements, especially when compared to earlier testimonies or documentary evidence. Inconsistencies or contradictions in the witness's account can significantly weaken their credibility and strengthen the opposing party's position.
   
• Revealing Alternative Interpretations:
  Cross-examination provides lawyers with an opportunity to present alternative interpretations of the facts, enabling them to shape the narrative in favor of their client. By artfully framing questions and highlighting favorable evidence, lawyers can create doubt in the minds of the judge, thereby strengthening their case.
   
• Impeachment of Adverse Witnesses:
  Through cross-examination, lawyers can impeach adverse witnesses by uncovering prior inconsistent statements, biases, or ulterior motives. Skillful questioning can expose the witness's lack of objectivity or credibility, potentially undermining the opposing party's entire case.
   
• Persuasive Advocacy:
  Cross-examination is not merely an opportunity to challenge the opposing party's witness; it also serves as a platform for lawyers to present their case effectively. By structuring their questions strategically and eliciting favorable responses, lawyers can weave a compelling narrative that supports their client's position, swaying the judge in their favor.

What are the things to be done before cross-examination?

1. The charge sheet and other statements of witnesses and the documents furnished u/s 207 Cr.P.C have to be verified thoroughly and if any documents are not furnished, get it from the court.
2. Read the records thoroughly and note down the points then & there.
3. Original documents in the court to be verified thoroughly:
   • You may get important points by going through the originals.
4. First-hand information with regard to the case should be gathered:
   • This can be done only by having a free and lengthy discussion with the accused.
   • Find out who are the real witnesses and who are the cooked up/ fake witnesses.
5. Unless you know the real facts of the case, you cannot decide your defence and prepare for the cross-examination.
6. Preparation of chart:
   • Do not rely upon the "list of witnesses to speak about the facts" given by the police along with the charge sheet.
   • A witness may speak about other facts also.
7. If possible go to the place of occurrence and assess the place and surroundings and note down the same:
   • Can be compared with statements of the eye witnesses and the observation mahazur and sketch drawn by police. (It is a description of facts and state of things which an investigating officer observes in a scene of crime. It should be prepared in the presence of two or more independent and intelligent witnesses preferably residing nearby. The witnesses should sign the Mahazur.)
8. Prepare the questions to be asked to every witness:
   • All the prepared questions need not be asked to the witness.
   • Depending upon the answer, questions may be omitted to be asked or fresh questions will be asked on the basis of the answers.
9. Defence counsel should be ready to cross-examine any witness at any time.
10. Defence counsel should project confidence through looks.
11. Have an idea about the Presiding officer (Nature) and public prosecutor (Nature).
12. Do not underestimate any witness.

During Trial

• Keep it in mind that Judge know the prosecution case before hand, just like you.
• Cross examination is nothing but defence theory:
  • § It is not a mere formality.
  • § One required to put one's own case. AIR 1963 SC 1906 (Sirmal-Vs-Annapurna Devi)
• Always be alert when Public prosecutor is taking chief examination.
• Don't allow the public prosecutor to ask leading questions.
• At the same time, if the probable answer to the leading question is an admitted one or already proved, there is no need to object.
• While giving evidence during chief examination, a witness may give an answer in favour of the accused. You should be vigilant enough to bring the answer in the evidence.
• If the judge objects to put a question to the witness, explain to the judge in a low voice (without the witness hearing the explanation) the purpose for your question.
• If still the Judge is not convinced, do not ask the question. (Try to put the question in another form).
• Don't fight with the Judge
• Presence of mind is very essential
• No cross to witness by bringing other witness's statement/evidence.
• If you appear for one of the several accused, Do not put any question pertaining to other accused.
• Be ready that other counsel for other accused may put question to a witness and elicit an answer unfavorable to you. (A reading of the statement of the witness will make you ready).
• Do not show any expression at that time. Maintaining a neutral expression during cross-examination is crucial for lawyers as it prevents unintentional cues that may influence the witness or sway the judge.
• You can very well further cross-examine the witness with regards to the answer unfavorable to you. (By drawing his attention to his statement/chief/Cross.)
• If no cross necessary, do not put unnecessary question to any witness (you may get unwarranted answer that may damage your case).
• A thorough knowledge about judgments on the issues you may rise in the case and basic knowledge about the relevant law is necessary.
• Keep it in mind that judges are also human beings.

Object of Cross Examination
To bring out the falsity and To find out the truth. In order to bring out this:

• Discredit the witness
• Destroy the chief examination
• Establish accused's version in bringing out the facts, which the witness has not deposed in chief examination.

Manner of Cross - Two methods

1. To approach a witness cautiously and politely with a view to create an atmosphere favourable to the elicitation of facts tending to support the opponent's case.
2. To go straight at the point and attack the witness directly.

Secret of cross-examination is patience. Here are some relevant quotes:
John Henry Wigmore (1923). "A Treatise on the Anglo-American System of Evidence in Trials at Common Law: Including the Statutes and Judicial Decisions of All Jurisdictions of the United States and Canada"

Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth. ... Cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.

Hawkins.J. then, Lord Brampton
"It is building a brick wall around a man. You ask your question, and the answer enables you to plant one brick here. Then another question - another brick, in quite a different place. If you ask your questions politely, very likely he will place half a dozen bricks in position himself. They are scattered all over the place, but you have your plan. By degrees the ring is complete. The WALL rises. And he finds he cannot get out".

Wellman PP.28-29
A good advocate should be a good actor. The most cautious cross examiner will often elicit a damaging answer. He should observe the greatest self-control, while examine a witness. He should not allow himself to be swayed by his feelings but remain unmoved whether he achieves a triumph or commits a mistake. If he shows by his face that the unfavourable answer of the witness hurts him, he may lose his case by that one point alone.

Cross examiners in our courts are offen seen to lose equanimity of mind by such an answer. They pause, perhaps blush, and thus lose their control of the witness. With the really experienced lawyer, such answer, instead of appearing to surprise or disconcert him, will seem to come as a matter of course and will fall perfectly flat. He will proceed with the next question as if nothing had happened, or even perhaps give the witness an incredulous, smile, as if to say, "who do you suppose would believe that for a moment".

Relevant provisions in Evidence Act, 1872

• Section 3:
  "Proved"
  A fact is said to be proved when, after considering the matters before it,the Court either believes it (fact) to exist
  (or)
  Considers its existence so probable that a prudent man ought, act under the circumstances of the particular case, to act upon the supposition that it exists.
   
• Section 4:
  "May Presume"
  Whenever it is provided by this Act that the Court may presume a fact it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
   
• Section 113-A
  "Shall Presume"
  A discretion has been given to a court to presume a fact (or) refuse to raise such a presumption.
  Abetment of suicide by married woman (Sect-306 IPC (may presume)
  Court has no option but it is bound to take the fact as proved until evidence is given to disprove it. (Eg.) N.I. Act, P.C Act (Sections 7,11) etc.
   
• Section 113-B
  Dowry Death u/s 304-B IPC
   
• Section 114
  The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
   
• Section 59
  Proof of facts by oral evidence
  All facts, except the contents of documents (or electronic records) may be proved by oral evidence.
   
• Section 60
  Oral evidence must be direct:
  
  • Seen
  • Heard
  • Perceived by sense
  • Expert opinion
     
• Section 61
  Proof of Contents of documents
  Either by Primary Evidence or by Secondary Evidence
   
• Section 62
  Primary Evidence By Production of original document itself.
   
• Section 63
  Secondary Evidence - Means and includes:
  
  • Certified copies u/s 76 of Public document u/s 74
  • Photograph of an original,
    if it is proved that the thing photographed is original, though not compared.
  • A Copy (2) compared with a copy(1) of a letter made by a copying machine, if it is shown that the copy(1) made by the copying machine was made from the original.
  • A Copy(2) transcribed from a copy(1), but afterwards compared with the original. It is not secondary evidence, if the copy(1) from which transcription was made compared with original.
  • Oral accounts of the contents of a document given by some person who has himself seen it.
  (Written admission admissible)
  
  1. existence/condition/contents admitted in writing by the other side. (Contents admissible
  2. Original destroyed/lost/not able to produce it in reasonable time without his default (or) neglect. (Contents admissible)
  3. Original not easily movable
     (Certified copy alone is admissible. No other secondary evidence is admissible)
  4. Original is a public document u/s 74
  5. If certified copy is permitted by this Act/any law to be given in evidence.
     (General result of the documents by a skilled person who has examined them).
  6. Originals consist of numerous accounts etc, which cannot conveniently be examined in court and the fact to be produced is the general result of the whole collection.
      
• Section 101
  On Whom burden of proof lies
  Even in a case where the burden is on the accused, it is well known that the prosecution must prove the foundational facts.
  2009 (15) SCC 200
  (State of Maharashtra - Vs-Dnyaneshwar Laxman Rao Wankhede)
  2009 (7) SCC 104
  (Jayendra Vishnu Thakur - Vs-State of Maharashtra)
   
• Section 11
  Alibi - Burden on the accused to prove it. Before that, prosecution must prove foundational facts. 2015(3) SCC (Cri.) 54 (Tomaso Bruno - Vs- St. of U.P.)
   
• Section 105
  Burden of proving that case of accused comes within exceptions (IPC etc)
  (Eg.) Section 80 (Accident in doing lawful act)
  Section -83 (Child above 7 years and under 12 years immature understanding).
  Section 84 (Act of a person of unsound mind)
  Section 325 (Voluntarily causing grievous hurt) (Except in section 335)
  Section 300 (Four exceptions)
  Section 499 (10 exceptions)
   
• Section 106
  Burden of proving fact especially within knowledge.
  2007 (1) SCC (Cri.) 732
  (Vikramjit Singh @ Vicky - Vs-State of Punjab)
  Husband & wife - car accident, wife stabbed - Both trial court & High Court applied section 106 and convicted. S.C. acquitted the husband on factual aspects that prosecution has not proved the other fact.
  (Car stopped 13 ft from main Road, information accident and Not robbery, recovery of jewels not at his instance)
   

Examination of Witnesses

• Section 135
  The order in which the witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court
   
• Section 136
  Judge to decide as to admissibility of Evidence
  When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
  
  If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
  
  If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
   
• Section 137
  The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.-The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
   
• Section 138
  Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and 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. Direction of re-examination.-The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.Chief and cross must relate to relevant facts

1997 (11) SCC 720 and Section 306(4) Cr.P.C.

(A.Devendran-Vs-State of Tamil Nadu)
CJM granted pardon after committed - Not in accordance with law.

1998 SCC (Cri.) 220
(Suresh Chandra Bahri - Vs-State of Bihar)
Session court find that approver was not examined by magistrate u/s 306(4) Cr.P.C. - Remained to magistrate - Defect rectified.

2000 SCC (Cri.) 587
(Remadhir Basu - Vs- State of W.B.)
2000 SCC (Cri.) 400
(State of H.P. - Vs- Surinder Mohan)
Finding - In the above mention two cases the finding is that the accused has no right of cross examination u/s 306 (4) Cr.P.C.

Section 32 in The Indian Evidence Act, 1872
Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. -Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:

1. When it relates to cause of death. -When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
    
2. Or is made in course of business. -When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.
    
3. Or against interest of maker. -When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
    
4. Or gives opinion as to public right or custom, or matters of general interest. -When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
    
5. Or relates to existence of relationship. -When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
    
6. Or is made in will or deed relating to family affairs. -When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
    
7. Or in document relating to transaction mentioned in section 13, clause (a). -When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
    
8. Or is made by several persons, and expresses feelings relevant to matter in question. -When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Section 33: Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated:
Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Section 158:
What matters may be proved in connection with proved statement relevant under section 32 or 33

• The object of this section 158 is to expose statements to every possible means of contradictions or corroboration in the same manner as that of a witness before court under cross examination.
• No sanctity attaches to the statement simply because a person is dead.
• His credibility may be impeached or confirmed in the same manner as that of a living witness.
• The reason is the statements u/s 32 or 33 are exceptional cases and it is but just and reasonable that such statements should as far as possible be subject to the various modes of attacking or corroborating them. (Eg.)-A admitted u/s 32 or 33 that he saw 'B' at Lahore on a certain day.
• Evidence could be given to prove that 'A' was in Calcutta on that day.

Section 159
Refreshing memory - While under examination refresh his memory referring to any writing made by himself at the time of transaction (or) made by any other person and read by the witness at the time of transacting and he knew it to be correct.

Section 161
Right of adverse party to cross examine after shown to him the writing. (If the witness refreshed his memory by seeing a document while in box).

Section 139
A person summoned to produce a document does not become a witness

Section 165
Judges' power to put questions or order production.
Cross with the permission of court permissible.

Section 141
Leading questions - Meaning
A question suggesting the answer which the person putting it wishes or expects to receive.

Section 142
No leading question except with permission of court
When courts permits- If it is,

• Introductory
• Undisputed
• Already sufficiently proved

Section 143

Cross - Leading questions may be asked

Section 145

Cross as to previous statement in writing

• Cross without showing the statement to him.
• For contradicting him, his attention must be drawn to that statement before the writing can be proved.

Section 146
Cross - Leading questions may be asked
Section 146 (Proviso) and Section 53-A
Questions lawful in cross:

• to test his veracity by injuring his character
• to discover who he is and what is his position in life.
• to shake his credit

Not Relevant

• For offences u/s 376, 376-A to E IPC, 354, 354A-B "Where question of consent is in issues" character, previous sexual experience with any person is not relevant.

Section 132 Witness not excused from answering on ground that answer will criminate (or) may tend directly or indirectly to criminate him (or) it will expose (or) tend directly or indirectly to expose him to a penalty or forfeiture of any kind Except for prosecution for giving false evidence Section 147

• When witness to be compelled to answer
• If relates to a matter relevant to the proceedings.

Section 148 Court to decide when question shall be asked and when witness compelled to answer. Permissible:

• 'Q' affects the credibility of the witness in the opinion of the court.

Permissible:

• Inference that if given would be unfavorable.

Not Permissible:

• 'Q' relating to imputation against witness remote in period not affecting the credibility in the opinion of the court.
• And, great disproportions between the importance of the imputations against the character of the witness and the importance of the evidence.

Section 149
'Q' damaging the character can not be asked without reasonable grounds.

Section 151
Indecent/Scandalous questions not permissible.

Section 152
'Q' insulting/annoying the witness not permissible.

Section 155
Impeaching the credit of witness In the following ways:

• Unworthy of credit (By the evidence of other persons)
• Corrupt (Receiving money etc) to give evidence
• Inconsistent statements

Conclusion:
Mastering the art of cross-examination is not only a skill that enhances an lawyer's advocacy abilities but also plays a vital role in the overall success of a case and the integrity of the legal system. The practical tips and techniques discussed in this article provide lawyers with valuable insights to navigate the complex terrain of cross-examination with confidence and effectiveness.

Cross-examination serves as a powerful tool for lawyers to challenge witness credibility, test recollection, reveal alternative interpretations, impeach adverse witnesses, and present persuasive advocacy. By strategically questioning witnesses, lawyers can uncover inconsistencies, biases, and hidden motives, ultimately strengthening their own arguments and undermining the opposing side's claims. Moreover, cross-examination helps ensure that the truth is revealed, and justice is served.

The importance of cross-examination extends beyond individual cases, as it contributes to the credibility and fairness of the legal system as a whole. By conducting thorough and skilful cross-examinations, lawyers uphold the principles of due process, ensuring that evidence is rigorously tested and that the truth prevails. The integrity of the legal system relies on lawyers' ability to uncover the truth, present compelling arguments, and challenge the opposing party's evidence, all of which are made possible through effective cross-examination.

Cross-examination holds significant importance in the Indian legal context for several reasons:
Determining Credibility:
Cross-examination provides an opportunity for lawyers to assess and challenge the credibility of witnesses. Through strategic questioning, lawyers can uncover inconsistencies, biases, or discrepancies in the witness's testimony, helping to establish the veracity of their statements. This is crucial in ensuring that the evidence presented is reliable and trustworthy.

Testing Witness Knowledge and Memory:
Cross-examination allows lawyers to test the knowledge, memory, and recall ability of witnesses. By probing their understanding of the events or facts in question, lawyers can assess the accuracy and reliability of their testimony. This helps in preventing false or misleading information from influencing the outcome of the case.

Exposing Biases and Motives:
Cross-examination serves as a tool to expose biases or ulterior motives of witnesses. Lawyers can delve into the witness's background, affiliations, or personal interests to determine any potential biases that may impact their testimony. Uncovering such biases is essential to ensure a fair and impartial trial.

Challenging Inconsistencies:
Cross-examination allows lawyers to challenge inconsistencies in witness statements. By comparing earlier statements, deposition transcripts, or documentary evidence, lawyers can identify any contradictions or changes in the witness's narrative. This helps in establishing the reliability of the witness's testimony and undermining the opposing party's case.

Presenting Alternative Interpretations:
Cross-examination provides an opportunity for lawyers to present alternative interpretations of the facts. By skillfully framing questions, lawyers can highlight favorable evidence and create doubt in the minds of the judge regarding the opposing party's version of events. This helps in strengthening the lawyer's own case and presenting a compelling narrative.

Protecting Rights of the Accused:
Cross-examination is crucial for upholding the rights of the accused. It allows the defense to challenge the prosecution's evidence, question witnesses, and present alternative explanations. This ensures that the accused receives a fair and robust defense, as guaranteed by the Indian Constitution.

In conclusion, cross-examination holds immense importance in the Indian legal system as it allows lawyers to assess witness credibility, test knowledge and memory, expose biases, challenge inconsistencies, present alternative interpretations, and protect the rights of the accused. It is a fundamental aspect of ensuring a fair and just trial, where the truth can be revealed and justice can be served.

By implementing the practical tips provided in this article, lawyers can enhance their cross-examination skills and contribute to the integrity and fairness of the legal system. With a commitment to upholding the principles of justice, diligent preparation, and strategic questioning, lawyers can effectively wield the power of cross-examination, ensuring a strong presentation of their client's case and facilitating the pursuit of truth and justice in the courtroom.

Also Read:

• Art of Cross-Examination
• Cross Examination In Criminal Proceedings