INTRODUCTION

The Indian Evidence Act, 1872 (The Act) defines the term cross-examination. Section 137 of the Act defines cross–examination as an examination of the witness by the contesting party. The objective of cross-examination is to establish the accuracy, credibility, and general value of the witness who has already been examined1 . The primary objective is to ascertain whether the facts are proved to the extent of their correctness by satisfactory and competent evidence2 . As per Section 138 of the Act, the order of the examination is that witness shall be first examined-in-chief, then cross[1]examined, and then re-examined. Therefore, cross-examination of a witness is a right endorsed by the Act and is mandatory for proving the fact. A cross-examination is expanded to the whole case and not limited to the examination-in-chief.3 This means that while cross-examining the submissions of a witness, the same can be contradicted not just by the affidavit of the witness, but also by such other documents like pleadings of the parties and the documents that have been relied upon by the party.

As per Section 142 of the Act, leading questions must not be asked in an examination-in-chief or in re[1]examination. However, the same may be asked by a contesting party to a witness in cross-examination.4 The leading questions5 are questions that point towards the credibility of the existence of a fact or the person putting it is expecting to receive a particular response. For instance, a question that embodies a material fact and admits of answer by a simple Yes or No is generally a leading question.6 . The concept of leading questions in a cross-examination is important because evidence improperly obtained by leading questions without first declaring the witness hostile should not be considered.7

LEGAL PROVISIONS

Sections 132, 146-148 of the Indian Evidence Act 1872 read along with order XVIII and XIX of the Code of Civil Procedure, 1908, together embrace the whole range of questions which can be properly addressed to a witness8 and the procedure thereof. Only the facts can be contradicted in cross-examination by putting them by way of suggestions to the witness. However, if it is intended to contradict a witness by writing, his attention must, before the writing can be proved, be called to those parts of the examination-in-chief which is to be used to contradict the witness.9 . Further, Section 146 of the Act provides the lawful questions that may be asked in cross-examination.

  • To check the witness's credibility.
  • To discover a witness's position in life - this includes questions as to his position in the organization, the role played in a particular project in question, awareness about the contractual terms, knowledge about the accounts of the company, knowing about his position in the company, etc.
  • To shake his credit - there can be two conditions: (a) when the witness is convicted of an offense involving moral obliquity and (b) when the witness has spent time with men of presumably bad character.10

Under Section 147 of the Act, a witness is compelled to answer a question if the same is related to a matter relevant to proceeding or suits. Additionally, Section 147 also attracts the application of Section 132 of the Act which provides that a witness shall not be excused from answering even if such questions which may impose a penalty or forfeiture of any kind. Also, it must always be kept in mind that Section 149 provides that only those questions shall be allowed to which the person asking the question has a reasonable ground for thinking that the imputation which it conveys is well-founded. In Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal11, it has been held by the court that such questions shall relate to relevant facts and are relevant only to the issue of whether the witness should or should not be believed.

PARADIGM FOR A CROSS-EXAMINATION IN AN INFRASTRUCTURE ARBITRATION

A cross-examination in an arbitration proceeding may include questions as to the date of sending and receiving the letters pointing out for any discrepancies, inconsistencies between the submission in the affidavit and the annexures referred or inconsistencies in the affidavit and the other pleadings, source of information for any averment made in the affidavit, demand for additional documents to prove the document/ calculations given by the affidavit and check the personal knowledge related to the matter of the deponent.

Questions for discrediting the witness can include questions like - lack of knowledge about the facts of the case and awareness of the records of the case. It can also be established (by way of questions) that no objections were raised before the proceedings regarding a particular breach of obligation by the other party, or objection as to non-sharing of certain documents/photographs/issue/or complaints at a prior time. Questions also include related to the amounts claimed and any discrepancy in the books of accounts or subsequent documents (evidence or books of account). Questions can be asked for an entry in the books/ documents/or any evidence for every amount claimed by the claimant. For every expense that is claimed or shown in the balance sheet, during the cross-examination of the witness, he can be asked to show the supporting document, agreement, receipt, bank account statement to prove the said claim/ amount/entry.

However, it should be kept in mind that anything which is a matter of record or an admission of the other party, should not be taken up at the cross-examination, in fact, such things should only be taken up at the time of final arguments. Questions cannot be argumentative. Such questions that challenge the business decisions of the entity e.g., questioning the reason for raising a particular loan cannot be asked in cross-examination.

While framing the questions for a cross-examination it is quintessential to check, challenge and question the procedure followed by the opposite party. The procedure may include the one defined in the concession agreements or the one enacted in the statutory provisions. A typical procedure in a contract can include the certification of a claim by an authority, verification of an invoice by some independent expert, may involve duty and obligation related to the inspection of goods or service, have limits for the imposition of penalty and grounds for the same, timeframes for correcting the shortcomings, etc. Also, statutory provisions may include serving of notice, an opportunity of being heard, due consideration to the process of law in any internal proceeding and raising of disputes before an appropriate forum.

CONCLUSION

Thus, from the provisions of the Indian Evidence Act and case decisions, it can be said that the statutory right of cross-examination is used by counsels for not only eliciting the truth but also for establishing a fact. In doing so they need to be careful not to ask misleading questions but they are allowed to ask suggestive questions or leading questions. It is impossible to list the whole sphere of questions to be asked in a cross-examination which seasoned lawyers master after several years of practice, the statutory provisions and suggestions mentioned above will certainly equip the reader with a better understanding for effective cross-examination.

Footnotes

1 Examination in-chief – examination of the witness by the party who calls him

2 Competent evidence is the evidence that is fit and proper for the inquiry

3 Sanjib Kumar Das v. State of Tripura 1995 AHC 1611(Gau)

4 Section 143 of Indian Evidence Act, 1872

5 Defined in Section 141

6 Taylor, Evidence, P1401; Greenleaf, Evidence, p. 434; Dhannu Beldar v. King Emperor AIR 1921 Pat 406,2PLT 757.

7 Jagdeo Singh v. Emperor AIR 1923 Pat 62

8 R v. Gopal Das (1881) 3 Mad 271, p 278 (FB)

9 Section 145 of the Act

10 Woodroffee And Amir Ali, Law of Evidence 20th Edition, Page 5392 of Vol 4.

11 Privy council appeal no. 17 of 1914

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