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This article is written by Aman Singh pursuing Certificate Course in Advanced Civil Litigation from LawSikho.

Introduction

Definition of cross-examination

Did you know that the skill of cross-examination has always been a determining factor of how good an advocate is? It does not only help in extracting or deducing important facts from a witness but can actually make you win or lose a case. So, first, a witness is subjected to examination, i.e. when a witness is brought with an objective of bringing forward the facts relevant to the case before the court. After this, he can be subjected to cross-examination by the opposite party. Section 137 of the Indian Evidence Act, 1872 provides that the examination of a witness by the adverse party shall be called his cross-examination. The stage of cross-examination comes after the stage of examination in chief which is done by the party who called the witness. Another stage of examination subsequent to cross-examination is called re-examination which is again done by the party who called the witness in order to enquire about the new facts disclosed to the adverse party during cross-examination (Section 138 of the Indian Evidence Act, 1872). It can be put in simple language that, though the examination-in-chief brings forward one side of the case which could be biased or probably partially true, cross-examination brings forward the undisclosed facts.

Scope of cross-examination

A good cross-examination can turn the tables in your favour and increase the chances of winning the case which was perhaps slipping out of hands, that’s the power of cross-examination. However having a very wide scope, cross-examination is preferred to be limited up to the core issues and relevant facts of the case. As discussed earlier, cross-examination is a tool to extract and unearth such facts which either build a case in favour of the party through a series of questions (constructive approach) or destroy the credibility of the witness produced by the adverse party (destructive approach). It is the facts, circumstances and other records of the case which can help the advocate to consider which approach he shall opt for. 

Importance of cross-examination in civil cases

Order XVIII of the Civil Procedure Code, 1908 that is, hearing of the suit and hearing of witnesses provides for the provisions related to the order of examination and the right to begin. The witness can be examined-in-chief by way of the affidavit, thereafter he can be cross-examined and if the circumstances require and any aspect needs unambiguity then re-examination may be allowed. The importance of cross-examination is vested in the aim it strives for, these aims are:

  1. Dig out such facts favourable to your case;
  2. To dispute the testimony of the adverse witness;
  3. Challenging the credibility of the witness called by the adverse party;
  4. Catching the attention of the court towards your perspective/version; and
  5. To strengthen your claims.

As stated above, the provisions of Order 18 of the Code of Civil Procedure, 1908(“CPC”) envisages the order of examination of witnesses and the right to begin. The witness can be examined in chief by way of his affidavit, thereafter he can be cross-examined.

As stated in Harish Loyalka And Another vs Dileep Nevatia And Others [2019 SCC OnLine Bom 68] the evidence in chief shall be on par with the pleadings. It cannot be in the form of arguments or submissions while expanding the interpretation of Rule 1 and 2 of Order 18 of CPC. A repercussion of the above discussion would show that the basic rule is that the Plaintiff has to prove his claim by positive proof because the Court has to see whether there is proof of claim or not before inquiring into the truth or otherwise of the defence, a similar view was held by the Court in Andhra Pradesh High Court in G. Venkata Krishnam Raju v. B. Jayalakshmi case.

Para 2 of the Harish Loyalka judgement rightly stated that “The provisions of Order 18 Rule 4 of the CPC require that the “examination in chief” shall be on affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only, such material as is properly admissible in examination in chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contains arguments and submissions is neither an affidavit within the meaning of CPC Order 19, Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4″.

Cross-examination is generally considered to be the most difficult branch of the multifarious duties of the advocate. The true question, therefore, in trials of cases is not whether it is possible that the testimony may be false, but whether there is sufficient probability of its truth, that is, whether the facts are proved by competent and satisfactory evidence. 

Order 18 Rule 17 of CPC enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. 

Another pertinent thing to note while considering the scenario when one of the defendants supports the case of the plaintiff is, he(defendant) should address the court and lead his evidence first before the other defendants who do not support wholly or in part the plaintiff’s case as held in Mrs Sarabjit Singh vs Mr Gurinder Singh Sandhu & Ors. [ILR (2011) I Delhi 624]. It is true that if any new matter is introduced, the opposing defendants might be allowed an opportunity subsequently to cross-examine the witness, but this would be a cumbersome process and would unnecessarily prolong the proceedings. Therefore, the rule requires that the plaintiff and such of the defendants who either support the plaintiff’s case wholly or in part, should address the court and call their evidence in the first place and thereafter, the other party which opposes the plaintiff’s case should address the court and call their evidence. 

For the sake of admissibility, cross-examination works as an important tool to segregate the truth from the facts/information received during examination-in-chief and eventually contributing to the quest for justice. 

How to cross-examine witnesses?

As said earlier, cross-examination is an art. Like other arts, you can master this after dedicated practice and going through a few trials. There are many secrets of cross-examination just like doing fly fishing, but the essence of both lies in listening to your instincts, setting the hook at just the right moment and when you sense it has stuck, let it run setting the hook free and subsequently wear him out and bring it to the shore. Similarly, during cross-examination that right moment” may announce itself with the slightest word like “yes”,” no”, “maybe” or a simple nod from the witness. When this happens, set the hook, wear him out, reel him in, the verdict is often yours. 

Take cross-examination as an opportunity to make your case strong with the help of an adverse witness. There are few things to consider and should be practised for yielding a cross-examination of opposing witnesses in building your case. For example, it is possible to show the witness’s eyesight is poor or the line of vision was obstructed. It is possible to show the witness was not present when certain events occurred. 

  • Always make individual goals for every witness

Not every tree produces fruits, if you think a witness is not worth adding to your client’s case just avoid cross-examining him. Always take that road that can lead to your desired destination. Questions should be based on prior testimony of the witness and emphasis must be laid on the quality of information a particular witness can add.

  • Pre-structure your questionnaire in such a way to make smaller room for witnesses to escape from

Always carry the answers to the questions you ask the witness during cross-examination. Ask more leading questions, this way you have control over the witness and don’t let him make room for comfort. Don’t forget the cross-examination has the object of shaking the credibility of the witness.

  • Change the questions or make them different from the other witness already cross-examined

Witnesses are smart too, one can read the whole cross-examination already held before him and come prepared for his cross-examination. To avoid this, mould the questions in a way that sounds different from the previous ones but seek similarly or nearly the same answers which are beneficial for the case.

  • Know your witness’s prior testimony and other details

Come prepared for the instances when you get an unexpected answer from the witness and your control over him starts to bobble. Your knowledge about his prior testimony and other details can make you take control again.

  • Never lose your cool, let him lose his 

If a witness is not cooperating, never lose cool, getting frustrated or aggressive may hamper your preparedness and may cause harm to your case. Request the Judge to instruct witnesses to answer the questions. 

How to deal with certain factors in cross-examination?

Hostile witness

Another nightmare for an advocate is “witnesses turning hostile during cross-examination”. We often come across such scenarios in criminal cases, for instance, let’s take the famous case of Jessica Lal murder case wherein 33 of the 49 witnesses examined by the prosecution since November 201 turned hostile in the special CBI court in Mumbai. The Indian Evidence Act, 1872, does not define a “hostile”, “adverse” or “unfavourable” witness. A hostile witness is understood to be one who does not tell the truth at the instance of the party calling him. 

Parties expect witnesses to testify in their favour; some witnesses, however, do not oblige. In several sensational cases, the prosecution has failed after witnesses turned hostile. However, in a civil case, when an affidavit of a witness is filed it apparently binds him to give such relevant information to the court which will eventually make your case strong. But what if that witness turns hostile (though it is rare in civil cases) during cross-examination? Section 154 of the Indian Evidence Act, 1872 comes into action here and at the discretion of the court, the witness called by an advocate can be cross-examined by him. It was held by the Andhra High Court in the case of Mattam Ravi vs Mattam Raja Yellaiah that there is no embargo to cross-examine a witness by the party who calls the witness even in civil proceedings. 

Expert witness

Expert witness comes under the purview of Section 45 of the Indian Evidence Act, 1872. Such witnesses have their expert opinion on subjects as mentioned under the aforementioned section. These subjects are foreign law, science, art, identifying handwriting or finger impressions. However, it is pertinent to mention that, the report of the expert witness only has corroborative value and if the said opinion is contrary to the ocular evidence, it is the ocular evidence that will prevail over the expert witness’s report, similar was held in the case of State vs Laxman Prasad Rai. The report submitted by an expert does not go into evidence automatically. In State Of Himachal Pradesh vs Jai Lal And Ors, it was held that an expert witness is to be examined as a witness in court and has to face cross-examination.

Impeaching credit of witness

In simpler terms, impeaching the credibility of a witness means exposing the real character of the witness in front of the court in order so that his prior statements cannot be trusted upon. Generally speaking, cross-examination revolves around this particular principle. The examiner needs to set a favourable narrative in front of the court. Section 155 of the Indian Evidence Act states that “the credit of a witness may be impeached in the following ways by the adverse party with the consent of the court or by the party who calls him:

  1. By the evidence of persons who testify from their knowledge of witnesses believe him to be unworthy of credit.
  2. By the proof that the witness has been bribed or accepted the offer of a bribe or received any other corrupt inducement to give his evidence.
  3. By the proof of former statements inconsistent with any part of his evidence which is liable to be contradicted”.

Few basics for a better cross-examination

Given below are some “dos” and “don’ts” during cross-examination: 

  1. Make a list of the statements required from the witness. 
  2. List out all the inconsistencies. After careful consideration, ascertain the important ones and use them against the witness.
  3. Don’t repeat questions already asked in the examination-in-chief.
  4. Separate the necessary points and create a list of facts and opinions that you plan to challenge. 
  5. Ask only leading questions and don’t let the witness put his explanation.
  6. Structure the questions in a form to get a favourable answer.
  7. Command the witness.
  8. Put short questions in plain words in order to get straight answers.
  9. Don’t ask a question whose answer you don’t know.
  10. Listen to the answers of the witness and ask the following questions related to it, it helps in shaking the credibility.
  11. Eliminate everything unnecessary.
  12. Attract the court and make them believe your perspective by proving that the witness is not reliable.
  13. Make sure to put suggestions on the judicial file for use as a defence later.

Conclusion

It can be deduced from the above discussion that a cross-examination is a crucial tool in courtroom proceedings in both civil and criminal cases. The only major difference between civil and criminal cases is witnesses turning hostile. However, this defect can also be fixed as discussed above. Other than that, the meticulous determination, hard work, common sense and the art of getting out the same information you want to hear are some basic essentials of the cross-examination. Pre-planned structure of questions, complete knowledge of witness’s prior testimony, taking advantage of surroundings, observing the behaviour of the witness are also important tools to prove the incapacity and unreliability of the witness before the court. 

Always remember that a confused witness may give more useful answers, whereas a knowledgeable witness with a good recollection of facts may be very harmful to your case. It is also pertinent to note that there are no exhaustive rules for a perfect cross-examination, it is the ability, experience and of course the skills as mentioned in preceding heads that are important and needs to be exercised as the circumstances require.

References


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