The law of evidence is a system of rules for ascertaining controverted questions of fact in a judicial investigation of the dispute before the Court.
In India, the Indian Evidence Act, 1872 ("Indian Evidence Act") is the principal legislation indicating, what is evidence, what are the types of evidence, what are the facts on which evidence are to be led and what are the facts on which evidence need not be led, who has the burden to lead the evidence, and last, as pertinent for the present discussion, how is the veracity of evidence led and claims made by the parties or witnesses thereof, are to be proved.
Modes to test the veracity of witnesses:
There are several ways in which the veracity of the averred and collected facts can be proved to varying degrees. For example, a statements on oath, attaches a degree of authenticity to the statements of a witness of the parties. Similarly, for the limited purposes, the brain-mapping test and Narco-analysis test assist in determining the veracity of the statements of witnesses. However, among them, the cross-examination is the principal and perennial mode, to equate the veracity of the averments of a witness in all types of disputes.
Cross-examination – Purpose and its foundational subject-matter:
Under the Indian Evidence Act, section 137, provides for the cross-examination. Professor Wigmore had once remarked the cross-examination as "the greatest legal engine ever invented for the discovery of truth". It is a "powerful searchlight to draw out the truth and further the cause of justice. Its object inter alia is to impeach the very credit of the concerned witness and shake his entire testimony" by "piercing through the evidence (see para. 9 & 10) given by the witness, who has been examined in examination-in-chief". Thus, it is essential to briefly appreciate its cardinal principles.
However, at the outset, it is also pertinent to discuss the material on which generally the cross-examination of the witnesses is based. Primarily, statements made by a witness in their Evidence by way of Affidavit or in examination-in-chief, along with exhibited documents, are the basis for every cross-examination, in all types of cases, i.e. criminal or civil. In criminal matters, such documents are generally encompassed in the Charge-sheet and the supplementary report, if any. It includes Arrest Memo, Seizure Memo, First Information Report, Inquest Report, Post-mortem Report, Site plans, statements under made under section 161 and 162 of the CrPC, 1973 by such witnesses during the investigation.
Similarly, in the civil disputes, the contracts entered by the parties, the record of ownership i.e. Jamabandi, the record of possession, i.e. Khasra Khatoni, the site plan of the land, communication between the parties, bills, receipts, and alike documents varyingly form the subject-matter of the cross-examination. Where one of the party is a legal entity, the documents like, LLP Deed, Memorandum of Association, Articles of Association, Board Resolutions, Meetings minutes, Balance sheets, and documents and communications, are often the subject of study before the Courts.
Canons of Cross-examination:
With this background, we may now proceed to discuss several cardinal principles, often to be remembered, while preparing for the cross-examination and at the time of cross-examination of a witness, in today's gait of the litigation in the Indian Courts. It must be remembered that such principles are always non-exhaustive and often molded as per the facts and circumstances of the case, the nature of the witness, the nature of the judicial officer supervising the trial, and also the nature of opposing counsel. Some of these basic tenets may be drawn as follows:
For example, it is pertinent to know the essential elements for commission and recusal from an offence like theft, murder, unlawful assembly, etc. Equally, it is important to have a bird's eye view of the essential procedural perquisites like what documents require registration, what documents require stamping, what documents need to be filed in original, when can a party file their certified copies.
It would be apt to cite an instance from the cross-examination of Richard Pigott by Sir Charles Russel before the Parnell Commission. At the very beginning of the cross-examination, Sir Charles Russel asked the witness to write some words like the name of the witness, "likelihood", and "proselytism" on a clean sheet of paper. At last, carelessly, he again asked to write another word "hesitancy". Now Sir Charles had an incriminating letter, written by the witness, wherein, the witness had spelt the word "hesitancy" as "hesitency". Interestingly, the witness on the given paper again spelt the word as "hesitency". Little did anyone realize when asked, but this had a decisive advantage to Sir Charles later in the trial.
A witness has in his examination-in-chief stated that the advance for purchase of a particular property was issued by his wife from the accounts of the company. She was director of the company while issuing funds for the purchase.
Question: In your examination-in-chief, at page ____, you state that your wife was the director of the Company at the relevant point of time. Is that correct?
Question: Whether you have placed any evidence on record before the Court to show that your wife was director of the company at the relevant time?
Now, this fact can be easily verified from the website of the Ministry of Corporate Affairs through the Company Identification Number of the Company. If the availed record of the company shows such a person as a director of the company, no more question should be put on this point. If the record does not show his wife as director, the witness may be further questioned as follows:
Question: Whether he can produce the document showing him being a director of the company?
The examining lawyer can always produce such a document in the Court as evidence to discredit this statement. However, the last question is not recommended when the document affirmatively proves the statement of a witness. The question if asked will merely remove the deficiencies in the witness's testimony. Instead, the examiner must leave with an indication of deficiency and not complete the file of the opposite party. The witness should be asked to produce the documents only for those facts which you are aware, either do not exist as stated, or, if exist, support your case or at least raise a doubt to the witness's testimony, or, such a document is necessitated for further examination and it is not available to the public.
For example, it would generally be redundant to question the witness on the amount advanced as security in an agreement or contract of sale, profit or loss, the value of the assets, the amount of liability of a company, etc. unless the records present before the court are disputed.
For example, a witness to an incidence of murder may be asked - What is his profession/occupation? Where were you on ___(a particular date) ____? Why was he at this place on this day? Was he not in his office? What was the time of the day when he was at the place of incidence? When a party gets a favorable answer in any of the said questions, which strongly infers that he was not present at the place of incidence on that date, he should not be asked by a question like he was present at the place of incidence, were you? This is because a direct question will often be met with a direct answer and will limit the scope of inquiry. However, a direct question may put when you have sufficient evidence to discredit the testimony of the witness [Read with point 16 & 17].
For example, when a witness state that he was at a particular place on a particular date which is a date of the incident, it is imprudent to question that, whether on this date of incidence you were at the place of incidence. He may often state that he was back by that time or correct his former statement.
"An amusing account is given in the Green Bag for November, 1891, of one of Jeremiah Mason's cross-examinations of such a witness. "The witness had previously testified to having heard Mason's client make a certain statement, and it was upon the evidence of that statement that the adversary's case was based. Mr. Mason led the witness round to his statement, and again it was repeated verbatim. Then, without warning, he walked to the stand, and pointing straight at the witness said, in his high, impassioned voice, 'Let's see that paper you've got in your waistcoat pocket! 'Taken completely by surprise, the witness mechanically drew a paper from the pocket indicated, and handed it to Mr. Mason. The lawyer slowly read the exact words of the witness in regard to the statement, and called attention to the fact that they were in the handwriting of the lawyer on the other side.
"'Mr. Mason, how under the sun did you know that paper was there?' asked a brother lawyer. 'Well,' replied Mr. Mason, 'I thought he gave that part of his testimony just as if he'd heard it, and I noticed every time he repeated it he put his hand to his waistcoat pocket, and then let it fall again when he got through'" [page 17].
Additionally, it is important to decide when should a contrary piece of evidence i.e. any letter, mail, etc. be introduced before the Court to discredit the testimony of the witness. There are varying views on it. Several lawyers introduce it at the beginning, read the statement to witness in parts, and then question on different occasions which statement is true? On the other hand, some lawyers prefer to first question on former statements and then introduce the evidence to discredit the testimony of such witness. This is basically, make the witness lie more to impeach his creditworthiness by the introduction of strong contrary evidence. If this approach is followed, the contrary evidence should be duly concealed to avert an opportunity to such witness to make improvements in his testimony before the introduction of the discrediting evidence [Read with 16].
"Knowledge is only the impression of one's mind and not the fact itself, which may present itself to many minds in many different aspects. The unconscious sense impressions sight, sound, or touch would be the same to every human mind; but once you awaken the mind to consciousness, then the original impression takes on all the color of motive, past experience, and character of the individual mind that receives it. The sensation by itself will be always the same. The variance arises when the sensation is interpreted by the individual and becomes a perception of his own mind. When a man on a hot day looks at a running stream and sees the delicious coolness, he is really adding something of himself, which he acquired by his past experience to the sense impression which his eye gives him" [page. 43].
Thus, the variance arises due in impression arise due to past experiences of a witness, attention he had paid to an incident, degree of readiness to look at the impression in a required way, the relation of the witness with the party and sense to make the side for which he appears win. Often the party's state varied versions on different occasions due to lapse of time. Such a witness often states based on recollection which is often molded due to above-said factors. The witness must be examined on these factors.
It has been often said that the lawyer is an actor at the time of cross-examination. However, today this central role of the cross-examiner appears to wade due to the huge pendency of litigation in the Indian Courts and the era of litigation having majorly been shifted to summary proceedings under special legislations. Often it is seen that the Courts carry their work in a regular way due to heavy pendency of cases, leaving the cross-examination being done under the supervision of the opposing counsel and the Court master, with fractional interventions of the Court when needed. Thus, the demeanor of the witnesses, of the opposite counsel, and lastly, the arguing counsel often go unnoticed. Given this, the decisions are often thus, solely based on the questions put and answers made, as noted on the sheet of papers.
(The author is an Advocate practising at the Supreme Court, Delhi High Court and other Courts at Delhi. He may be reached at [email protected])