Art of Cross Examination of witness- Introduction- Lawful Questions

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

Section 60 in The Indian Evidence Act, 1872
60. Oral evidence must be direct.—Oral evidence must, in all cases whatever, be direct; that is to say— If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

SHADOW WITNESS

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...... ".

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