Chapter 1

Rules of Cross Examination :An Introduction

The art of Cross-Examination plays an important role in the trial of each case which involves hard

work and talent of lawyers while providing justice to their clients. A perfect lawyer should learn

the art of Cross-Examination not by reading newspapers but the successful artist learns by doing it,

or watching others do it well; by reading trial and deposition transcripts or, better yet, by

conducting the examination personally. The trial lawyer must learn as well to adapt to particular

witnesses and different cases. The right of Cross-Examination is one of the most powerful

instrumentalities provided lawyers in the conduct of litigation. One of the most important purposes

of Cross-Examination is to attempt to destroy the testimony or the credibility of the opponent’s

witnesses. Justice is not served if a witness is unable to communicate credibility to a jury. The

search for truth is the ultimate and idealistic end of all litigated matter in a court trial.

The main object of Cross-Examination is to find out the truth and detection of falsehood in human

testimony. It is designed either to destroy or weaken the force of evidence which is already given

by a witness. Cross-Examination of witness is a duty of every lawyer towards his client and not a

matter of glory and fame. It is the most efficacious test to discover the truth and to detect the false

statements of the witness. It should be remembered that the Justice should not be defeated by the

improper Cross-Examination. One of the purposes of Cross-Examination is to asking questions

regarding what the witness has stated in the Examination-in-chief and the answer is the reply by

the witness to the question put by the advocate.

1.1 Research Methodology :

Research is to know about something of which you have curiosity. There are two types of

research methods (i) doctrinal and, (ii) Non- doctrinal. In this report both methods are used. The

research was conducted under the supervision of faculty of Arts of Cross Examination. The

resources of information were the libraries.

Some major libraries for research were:

Library of University Five Law College

University of Rajasthan Library

1.2 Hypothesis

Cross-Examination means the examination of witness by the adverse party shall be called his cross-

examination. The main object of Cross-Examination is to find out the truth and detection of

falsehood in human testimony. It is designed either to destroy or weaken the force of evidence

which is already given by a witness.

. Chapter 2

General Rules of Cross Examination

According to at least one judge, most lawyers do a good job in their opening statements, direct

examinations, and closing argument, but never learn the art of cross-examination. To master that

art, lawyers need to give cross-examination the same attention they do other phases of trial.

Judge William F. Rylaarsdam offers the following tips to highlight the special purposes of cross-

examination and to be a guide for mastering the art of cross-examination.

Don’t confuse cross-examination with a deposition. The purposes of each are completely

distinct: the purpose of a deposition is to find out what information the witness has and nail

the witness down to a particular version of the facts, and the purpose of cross-examination is

to ascertain the truth of alleged facts.

Consider whether to cross-examine at all. The answer to this depends on whether the

witness has testified to anything that injures your case.

Control your own demeanor during cross-examination. When counsel speaks pleasantly

and frankly, shows confidence, refrains from acting surprised, and stays focused on the real

issues, he or she projects credibility and adds to the credibility of his or her case.

Keep it simple. Always keep cross-examination questions short and simple. Convoluted

questions will lead the jury to conclude that you are trying to confuse witnesses rather than

to get to the true facts.

Keep it short. A long cross-examination may lead the jury to conclude that the witnesses’

testimony must be of particular significance.

Only ask questions that help you. Never ask a question on cross-examination unless (1)

you know what the answer will be, and (2) the answer aids your side of the case.

Avoid open-ended questions. Open-ended questions give the witness too much latitude to

answer. They are particularly harmful when asked of an expert witness who will then look

toward the jury in a very professorial manner and explain the matter yet again to the dummy

lawyer who didn’t get it the first time.

Know when to quit. Always quit while you are ahead. When a cross-examination question

elicits a helpful answer, don’t elaborate by asking a further question on the same subject

because the witness will likely use those further questions to try to explain away the earlier

answer.

Make good use of deposition answers. Having the witnesses’ sworn answer to a question

means that you can safely ask that question during cross-examination as long as it advances

your position. If the answer is the same as that given during the deposition, then favorable

information is before the jury, and if it differs, then you can impeach the witness with the

deposition testimony.

Get the court’s help with a recalcitrant witness. Each time the witness gives an evasive

answer, politely ask the court to instruct the witness to answer the question. Each time the

witness’s answer goes beyond the scope of the question, ask the court to strike the offending

portion of the answer and to instruct the jury to disregard it.

Chapter -3

Cross Examination and The Indian Evidence Act,1872

The Indian Evidence Act is not strictly applicable to departmental inquiries, but its provisions have

significant relevance, as examination/cross examination of witnesses in substance is materially for

the same purpose both in a law court and in a departmental inquiry. It is therefore pertinent to

study the provisions of the Act, with reference to examination witness.

3.1 Provisions Covering Examination of Witnesses In The Court(Sections 137 to 140 of Indian Evidence Act)

Examination-in-chief is the examination of a witness by the party who calls him

cross-examination is the examination of the witness by the adverse party.

Re-examination is the examination of the witness subsequent to the cross-examination by

the party who called him.

The evidence of witnesses shall be taken in open Court in the presence and under the personal

direction and superintendence of the Judge.

The examination of a witness by the party who calls him shall be called his Examination-in-Chief.

It must relate to relevant facts. No leading questions can be asked. The object of this examination

is to get from the witness all material facts within his knowledge relating to the party's case. It is

the duty of the counsel to bring out clearly and in proper chronological order every relevant fact in

support of his client's case to which the witness can depose. The statements made in examination-

in-chief lose much credibility and weight unless they are put into the crucible of cross-examination

and emerge unscathed from the rest.

The examination of a witness by the adverse party shall be called his cross-examination. The

purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a

party is admissible against that party unless the latter has had an opportunity of testing its

truthfulness by cross-examination1.

1 Maganlal Vs. King Emperor AIR 1946 Nagpur 126

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The object of cross-examination is to impeach the accuracy, credibility and general value of the

evidence given in chief; to sift the facts already stated by the witness, to detect and expose

discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining

party. Cross-examination, though a very powerful, is also a very dangerous engine. It is a double-

edged weapon, and as often wounds him who wields it, as him at whom it is aimed. To wield it to

advantage requires a great practice and natural tact. It should be keep in mind that the essence of

cross-examination is, that it is the interrogation by the advocate of one party of a witness called by

his adversary with the object either to obtain from such witness admissions favourable to his cause,

or to discredit him. Cross-examination is the most effective of all means for extracting truth and

exposing falsehood. But if the adverse party has had liberty to cross-examine and has not chosen to

exercise it, the case is then the same in effect as if he had cross-examined.

When witness not to be Cross Examined: -

i. A witness summoned merely to produce a document;

ii. A witness sworn by mistake

iii. A witness whose examination has been stopped by the judge before any material question

has been put is not liable to cross-examination;

iv. A witness giving replies in answer to questions by the Court can only be cross-examined as

to credit;

v. A witness, who has given no evidence in chief, may not be cross-examined as to credit;

vi. The Court may disallow cross-examination used simply to oppress and not for the purpose

of justice;

vii. Witnesses to character, though liable to be, are in fact rarely cross-examined.

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.

The re-examination shall be directed to the explanation of matters referred to in cross-examination;

and, if new matters, by permission of the Court, introduced in re-examination, the adverse party

may further cross-examination upon that matter. The right to re-examination a witness arises only

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after the conclusion of cross-examination and it shall be directed to the explanation of any part of

his evidence given during cross-examination, which is capable of being construed unfavorably to

his own side. The object is to give an opportunity to reconcile the discrepancies, if any, between

the statements in examination-in-chief and cross-examination or to explain any statement

inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion

cast on the evidence by cross-examination.

The examination of witnesses is viva voce. It is always in the form of questions and answers.

Where a question is objected to and yet allowed by the Court to be put, the question and it answers

are taken down verbatim. At the end of the deposition, it is read out to the witness and signed by

the Presiding Officer. The procedure followed in departmental inquiries is almost identical. Here in

the place of the judge, the Inquiry officer moderates on the examination/cross-examination of

witness by both parties. It is also relevant to study what CVC has provided by way of guidelines,

as it is an expert body in respect of conducting departmental inquiries.

3.2 Cross-Examination of Witnesses - Guidelines of CVC from its Manual

In departmental proceedings the rules of evidence laid down in the Evidence Act are, strictly

speaking, not applicable and the Inquiry Officer, the Presenting Officer and the charged public

servant are not expected to act like judges or lawyers. The right of the Government servant to

cross-examine a witness who has given evidence against him in a departmental proceeding is,

however, a safeguard implicit in the reasonable opportunity to be given to him under Article 311

(2).

The scope or mode of cross-examination in relation to the departmental enquiries have not been

clearly set out anywhere. But there is no other variety of cross-examination except that envisaged

under the Evidence Act. It follows, therefore, that the cross-examination in departmental enquiries

should, as far as possible, conform to the accepted principles of cross-examination under the

Evidence Act.

Cross-examination of a witness is the most efficacious method of discovering the truth and

exposing false-hood. During the examination-in-chief the witness may say things favourable to the

party on whose behalf he tenders evidence and may deliberately conceal facts which may

constitute part of the opponent's case. The art of cross-examination lies in interrogating witness in

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a manner which would bring out the concealed truth.Usually considerable latitude is allowed in

cross-examination.

i. The Inquiry Officer may not ordinarily interfere with the discretion of the cross-examiner

in putting questions to the witness. However, a witness summoned merely to produce a

document or a witness whose examination has been stopped by the Inquiry Officer before

any material question has been put is not liable to cross-examination

ii. It is also not permissible to put a question on the assumption that a fact was already proved.

iii. A question about any matter which the witness had no opportunity to know or on which he

is not competent to speak may be disallowed.

iv. The Inquiry Officer may also disallow question if the cross-examination is of inordinate

length or oppressive or if a question is irrelevant.

v. It is the duty of the Inquiry Officer to see that the witness understands the question properly

before giving an answer and of protecting him against any unfair treatment.

3.3 Questions lawful in Cross-examination

i. Witness to character can be cross-examined and re-examined(Sec.140)

ii. Leading Questions may be asked in cross-examination(Sec.143)

iii. A witness may be cross-examined as to previous statements made by him in writing and

relevant to matters in question(sec.145)

iv. Other Lawful Questions-

Questions to test the veracity of the witness

to discover who he is and what his position in life, or

to shake his credit, by injuring his character

3.4 Questions, which are not to be Asked in Cross-Examination

i. Questions not be asked without reasonable grounds. In other words one cannot embark on a

'fishing expedition'(Sec.149)

ii. Indecent and Scandalous questions cannot be asked (Sec.151)

iii. Questions intended to insult or annoy, or questions needlessly offensive in form cannot be

asked(Sec.152).

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Chapter 4

Case Study

4.1. Hari Narayan singh v/s State of West Bengal 2

(Ratio-Impeaching the credit of a Witness by Cross-Examining)

According to this case court observed that it is not necessary that all the persons who happen to be

there should be brought as witnesses. One witness out of several is good enough, if his testimony

legally acceptable and believable.

4. 2. Bhagwan Singh v/s State of Bihar3

(Ratio-Cross-Examination of Hostile Witness)

In this case Supreme Court observed “where the court gives permission to the prosecutor to Cross-

Examine his own witness thus characterizing him as, hostile witness, that fact does not completely

effaces his evidence. The evidence remains admissible in the trial and there is no legal bar to base

a conviction upon his testimony if corroborated by other reliable evidence.

2 2009 CriLJ 4001 [cal.]3 AIR 1976 SC 202

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Chapter -5

ConclusionIt can safely be concluded that Questions asked during the Cross-Examination must be relevant to

the issue related in the facts of the case and indecent & scandalous questions can also be asked by

the advocate at the time of Cross-Examination unless they relate to the fact in issue. Most

importantly questions intended to insult or annoy should be forbidden by the court though

questions seems to be proper.

The court who has authoritative power to decide the case can recall the witness for the

Cross-Examination based on the facts and circumstances of the particular case and a summary

procedure does not take away the rights of the parties to Cross-Examine whereas every party has to

be given fair deal in the matter of Cross-Examination. There are certain important points which

can be considered as chief heads of the Cross-Examination as follows:-

1. To cause the witness to alter or amend his evidence by questioning about his testimony.

2. To modify the evidence given under the Examination-in-chief, by causing the witness to

speak to supplementary facts to show the reasons and circumstances.

3. To discredit the evidence of witness by putting questions connected with his character.

4. From reasons arising out of his evidence by causing him to give further evidence.

5. To cause him to give evidence to be received as true.

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