Cross Examination Project

7/24/2019 Cross Examination Project

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Cross examination

PROJECT

ON

Questions lawful in cross

examination

Submitted to:- Submitted by:-

MR. TUSHAR VED SAXENA SARTHAK GAUR

ASST. PROFESSOR OF LAW B.A., LL.B. (H)

AMITY LAW SCHOOL, CENTRE-II SEMESTER-7

SECTION-‘B’

A11911112086



ACKNOWLEDGEMENT

A research project of such great scope and precision could never have been possible without

great co-operation from all sides. Contributions of various people have resulted in this effort.

Firstly, I would like to thank God for the knowledge he has bestowed upon me.

I would also like to take this opportunity to thank Mr. Tushar Ved Saxena without whose

valuable support and guidance, this project would have been impossible. I would like to thank

the library staff for having put up with my persistent queries and having helped me out with

the voluminous materials needed for this project. I would also like to thank my seniors for

having guided me and culminate this acknowledgement by thanking my friends for having

kept the flame of competition burning, which spurred me on through the days.

And finally my parents who have been a support to me throughout my life and have helped

me , guided me to perform my best in all interests of my life , my grandparents who have

always inculcated the best of their qualities in me.

SARTHAK GAUR



WHAT IS CROSS-EXAMINATION?

Examination of witness consists of the following three stages:

1. Examination-in-chief

2.

Cross-examination

3. Re-examination

After the party calling a witness has finished the examination-in-chief, the opposite party has

a right to cross examine the witness. Cross-examination, if properly conducted, is one of the

most useful and efficacious means of discovering the truth. According to sec. 137 of the

Evidence Act, “the examination of a witness by the adverse party shall be called his cross-

examination.” Cross-examination need not be confined to the facts to which the witness had

stated in his examination-in-chief. Therefore, the question in cross-examination also must be

relevant to the fact which was required to be proved by that witness. Leading questions may

be asked. A witness may be cross examined as to the previous statements made by him in

writing or reduced in writing. There is no provision which says that cross-examination should

be confined what is volunteered by witness and cannot be directed to challenge or clarify the

answers given in cross-examination. Cross-examination is considered the most powerful

weapon. According to Philip Wendell, it is double-edged weapon, if you know how to wield;

it helps to cut enemy’s neck. Otherwise, it cuts one’s own hands.

A misleading question should not be allowed in cross-examination. If no opportunity is given

to cross examine a witness his evidence must be excluded from consideration. The evidence

of witness, examined before the charge is framed, but not produced for cross-examination, is

not admissible.



QUESTIONS LAWFUL IN CROSS-EXAMINATION

Sec. 146 of the Evidence act deals with the questions lawful in cross-examination. “When a

witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be

asked any questions which tend —

(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 questions

might tend directly or indirectly to criminate him or might expose or tend directly or

indirectly to expose him to a penalty or forfeiture: 1[Provided that in a prosecution

for rape or attempt to commit rape, it shall not be permissible to put questions in the

cross-examination of the prosecutrix as to her general immoral character.]”

In addition to the questions which may be asked in cross-examination under the provisions of

Sec. 138, a witness may be further asked the questions mentioned in Sec. 146. This section

extends the power of cross-examination far beyond the limits of Sec. 138 which confines the

cross-examination to relevant facts including the facts in issue. The scope of this section is

wider than that of Sec. 138 and is more extensive in scope. The expression “hereinbefore

referred to” refers to Sec. 138, paragraph 2. In R. Dineshkumar Deena v. State, u/s 146 of

the Evidence Act, during cross examination, it is lawful to ask questions which may or may

not be relevant to the matter in issue for anyone or more of the three purposes mentioned in

S.146 of the Evidence Act, although the answer may directly or indirectly incriminate him.

These questions related to the trustworthiness of the witness.

(1) To test his veracity- a witness may be cross examined not only as to the relevant

facts but also as to all facts which reasonably tend to affect the credibility of his

testimony. This is generally spoken of as cross examination to credit; in as much as a

large part at any rate of the facts which are relied on for the purpose are facts which

touch the credit and good name of the witness. But no such cross examination can be

legitimate unless it has some reasonable bearing on his credibility. The statements of a

witness being testimonial of their nature, it is right to subject them, to impeachment in

the appropriate ways. So it is competent to the parties to put almost any question in



cross-examination, which he may consider important to test the accuracy or veracity

of the witness. A witness may always be subjected to a strict cross-examination as a

test of his accuracy, his understanding, his integrity, his basis and his means of

judging.

(2) To discover who he is and what is his position in life- it is common practice to

make inquiry into the relationship of the witness with the party on whose behalf he is

called- business, social and family- also to inquire as to his feeling towards the party

against whom his testimony in a proper light with reference to bias in favour of one

party or prejudice against the other.

(3) To shake his credit by injuring his character- in determining the relevancy of

character as affecting the credit to be given to a witness the first question is what kind

of character is relevant? Whether, bad moral character in general or some other

specific bad quality in particular is admissible. The assault on the character of witness

must be directed only for the purpose of shaking his credit. In Babu Rao Patel v

Bathakeray,1 , it was said that “Questions should not be directed towards laying bare

with private life of the witness.” Scandalous questions if relevant are to be put. The

object of the law is to show the character of the witness as to telling the truth. The

credit of a witness can be said to have been shaken only if it can be shown that he is

not a man of veracity, and not that he is of bad moral character. A black-marketer is

not necessarily untruthful not a non-black marketer necessarily man of veracity. In

Deepchand v. Sampathraj 2 , it was held that it is perfectly open to a lawyer to put

questions to a witness in cross-examination in order to shake his credit by injuring his

character and the mere fact that the answer to such questions may directly or

indirectly tend to criminate the witness is no justification to refuse to answer such

questions. the lawyer must be satisfied that there are reasonable grounds for thinking

that the imputation which it conveys is well founded, since if such questions are put,

the injury is done.

1 1978 CrLJ 1937

2 AIR 1970 Mys 34; 1970 CrLJ 260



CROSS EXAMINATION IN RAPE CASES

It is not permissible to put questions to a prosecutrix pertaining to her general character when

the petitioners requested to screen blue video recording of the prosecutrix indulging in sexual

acts. Questions which have no relevance to the issues before the court and which are

apparently directed to cause discomfiture, if not humiliation, to the victim of sexual offences

should not be permitted.

Exception:

It has been provided that in case of rape or attempt to commit rape it shall not be permissible

to put questions in cross-examination of the prosecutrix as to her general immoral character.

Therefore, the order of rejecting petitioner’s request to screen or show blue video recording

of the prosecutrix indulging in sexual acts is proper.

In Di lbhajan Singh vs. State Of Pun jab 3 it was said that in a rape case, it is not possible to

put questions to a prosecutrix pertaining to her generally immoral character. Similarly, Sub-

section (3) of Section 146 of the Indian Evidence Act provi, des that when a witness is cross-

examined, the defence can ask him question which tend to shake his credit, by injuring his

character, although the answer to such questions might tend directly or indirectly to criminate

him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture, but

the aforesaid provision has been added to this sub-section by the recent amendment. Now, in

a rape case, the accused cannot be allowed to adduce any evidence to prove that the

prosecutrix was having any immoral character, prior to the date of occurrence. Such kind of

video recording, if shown in the Court room, will definitely amount to impeach the general

character of the prosecutrix and to embarrass her in the Court, which exactly is not

permissible under the law.

3 2004 CrLJ 3152



ADMISSIBILITY OF TAPE RECORDED STATEMENT

Certain important points to be noted for Sec. 146 are:-

i. This section is applicable only for cross-examinations.

ii. Permission of court would be required while making questions.

iii. These questions cannot be considered as Defamation because permission of court is

taken. Hence Section 500 of Indian Penal Code, 1860 does not arise.

iv.

Court has discretion to reject questions which are unnecessarily provocative or mere

harassing.

v. A statement recorded in a tape recorder can be used as corroborative evidence.

The tape itself is the primary and direct evidence admissible as to what has been said and

picked up by the recorder. A previous statement, made by the witness and recorded on tape,

can be used not only to corroborate the evidence given by the witness in the court but also to

contradict the evidence given before the court, as well as to test the veracity of the witness

and also to impeach his impartiality. Thus apart from being used for corroboration, the

evidence is admissible in respect of other three matters, u/s 146(1), exception 2 to Sec. 153

and Sec. 155(3). The weight to be given to such evidence is however distinct and separate

from the question of its admissibility.

In Pratap Singh v. State of Punj ab 4 , the SC held that the rendering of a tape recorded

conversation can be legal evidence by way of corroborating the statement of a person who

deposes that the other speaker and he carried on the conversation and even of the statement of

a person who may depose that he overheard the conversation between the two persons andwhat they actually stated had been tape-recorded that weight to be given to such evidence

will depend on the other facts may be established in a particular case. But a tape-recorded

conversation is admissible in evidence.

In R.M. Malkani v. State of Maharashtra 5 , it was held that a tape-recorded conversation is

admissible, provide first, the conversation is relevant to the matters in issue; secondly, there

is identification of the voice, and thirdly, the accuracy of the tape-recorded conversation is

4 AIR 1964 SC 72

5 (1973) 2 SCR 417; AIR 1973 SC 157



proved by eliminating the possibility of erasing the tape-recorder. The tape-recorded

conversation is, therefore, a relevant fact under Sec. 8 of the Evidence Act and is admissible

under Sec. 7 of the Evidence Act. It is res gestae. It is also comparable to a photograph.

The tape itself is primary and direct evidence admissible as to what has been said and

admissible as to what has been said and picked up by the recorder.

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Cross Examination Project