Art of Cross Examination of witness- Introduction- Lawful Questions
Thank you for reading this post, don't forget to subscribe!Section 146 in The Indian Evidence Act, 1872- Questions that can be lawfully asked to a witness is a very important step, because this could establish the fact whether the witness has personal knowledge of the facts or is testifying on hearsay. 146. 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.]
Role of Power of Attorney as a witness:
The Hon’ble Supreme Court in Janki Vashdeo Bhojwani And Another vs. Indusind Bank Ltd. And others, (2004) 3 SCC made the following observations which are used as a guidelines and referred to by lawyers .
“The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal.
In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”
Now let us examine Order III rules 1 and 2 CPC
1. Appearances, etc., may be in person, by recognized agent or by pleader. - Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [appearing, applying or acting, as the case may be,] on his behalf: Provide that any such appearance shall, if the Court so directs, be made by the party in person.
2. Recognized agent. - The recognized agent of parties by whom such appearances, applications and acts may be made or done are-
(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.
Section 60 Indian Evidence Act,1872
SHADOW WITNESS
The Hon’ble Supreme Court in Meena v. State of Maharashtra (2000) 5 SCC 21, law always favours the presence and importance of a shadow witness in the trap party, who is supposed to be there not only to see but to overhear what happens and how it happens.
Effect of Non cross-examination of witness
In State of UP Nahar Singh (dead) & Ors. (1998) 3 SCC 561, their Lordships observed, "in the absence of cross-examination on the explanation of delay, the evidence of PWI remained unchallenged and ought to have been believed by the High Court. It was observed in Srichand & Shivan Das vs. State (1985) 28 DLT 360, the law is well settled that when the evidence of a witness is allowed to go unchallenged with regard to any particular point. it may safely be accepted as true...... ".
Who cross examine the witness?
In India, the cross-examination of witnesses is typically conducted by the opposing party's lawyer during a trial or hearing. The purpose of cross-examination is to challenge the credibility of the witness and to elicit information that supports the opposing party's case. The cross-examination process usually involves the following steps: The witness is called to the stand and is questioned by the party that called them to testify (known as the direct examination). After the direct examination, the opposing party's lawyer has the opportunity to cross-examine the witness. During cross-examination, the lawyer asks the witness questions to challenge their testimony, credibility, or knowledge of the events. The party that called the witness to testify may also conduct a re-examination to clarify or rebut any points raised during the cross-examination. It is important to note that the cross-examination of witnesses is subject to certain rules and limitations. For example, the questions asked during cross-examination must be relevant to the case and should not be overly repetitive, harassing, or intimidating. The judge has the authority to intervene and control the cross-examination process if necessary to ensure a fair and impartial trial. In summary, in India, the cross-examination of witnesses is typically conducted by the opposing party's lawyer during a trial or hearing, subject to certain rules and limitations.
Recall of witness for cross examination?
In India, a witness can be recalled for cross-examination if either party has a valid reason to do so. This means that either the plaintiff or the defendant can request the court to recall a witness for further cross-examination if new facts or evidence have emerged or if there is a need to clarify or challenge the witness's testimony. The process of recalling a witness for cross-examination is generally as follows: The party requesting the recall of the witness must make an application to the court stating the reasons why they want the witness to be recalled. The court will consider the application and may decide to grant or deny the request based on the relevance of the new facts or evidence and the overall impact on the case. If the request is granted, the witness will be notified and asked to appear in court for further cross-examination. During the cross-examination, the party that requested the recall of the witness will have the opportunity to question the witness on the new facts or evidence or to clarify any ambiguities or inconsistencies in their previous testimony. It is important to note that the recall of witnesses is subject to the court's discretion, and the decision to recall a witness may depend on various factors, including the timing and relevance of the new evidence, the availability of the witness, and the impact on the overall case.
Tapan Choudhury,
Advocate,
Mob- +91 9873628941
Email ID [email protected]
