Write note on Cross Examination. When a witness is cross-examined, what other questions can be asked in addition to the questions relating to the incident? How a witness can be contradicted by the previous statements made by him in writing?

Cross-examination stands at the very centre of the adversarial system of trial. It is the mechanism by which the sworn testimony of a witness, however confidently delivered in examination-in-chief, is subjected to the searchlight of truth. Without it, the courtroom would be, as one jurist memorably observed, a haven for perjurers.

The Nature and Purpose of Cross-Examination

Cross-examination is defined under Section 137 of the Indian Evidence Act, 1872, and its counterpart Section 142(2) of the Bharatiya Sakshya Adhiniyam, 2023, as the examination of a witness by the adverse party. It follows examination-in-chief as a matter of procedural right, and it is the acid test by which the testimony of a witness is weighed. Wigmore described it as "the greatest legal engine ever invented for the discovery of truth", and the Indian courts have consistently echoed this sentiment.

The objects of cross-examination, as enumerated by the Supreme Court in Anita Sharma v. New India Assurance Co. Ltd. (2021 1 SCC 171), may be stated as follows:

• To destroy or weaken the evidentiary value of the witness's testimony

• To elicit facts favourable to the cross-examiner's client from the mouth of the adverse witness

• To show that the witness is unworthy of belief by impeaching his credit

• To test the veracity of the witness

• To discover who he is and what is his position in life

• To shake his credit by injuring his character

Cross-examination, unlike re-examination, need not be confined to the facts deposed to in examination-in-chief. As Section 138, para 2 of the IEA (Section 143(2) of the BSA) makes clear, while examination-in-chief and cross-examination must relate to relevant facts, the cross-examination is not hemmed in by the perimeter of what was stated in examination-in-chief. This is a crucial distinction — the cross-examiner can explore the whole case.

The Statutory Framework

Questions Beyond the Incident: Section 146 of the IEA / Section 149 of the BSA

Here lies the most expansive dimension of cross-examination — the power to ask questions that go far beyond the facts of the incident and extend into the witness's veracity, identity, and character. Section 146 of the IEA, now Section 149 of the BSA, provides that 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

The cross-examiner is entitled to probe whether the witness is speaking the truth. This goes to the very core of the witness's trustworthiness as a source of evidence. Questions that reveal inconsistencies within the deposition itself, prior contradictory statements, or the witness's bias, relationship with the party, motive to fabricate, or interest in the outcome — all fall within this category. As it has been observed, this form of cross-examination is sometimes called cross-examination to credit, because its purpose is to show that the witness on whom a party relies is not worthy of the court's belief.

2. To Discover Who He Is and What Is His Position in Life

It is common practice, as a preliminary to substantive cross-examination, to inquire into the witness's relations with the party calling him — family, business, social — and to inquire into his feelings toward the party against whom he is deposing. This is the legitimate inquiry into the witness's position in life, which allows the court to assess his independence, impartiality, and the probability of his testimony being truthful. A witness who is a close relative of the victim in a criminal case, or an employee who owes his livelihood to the plaintiff in a civil suit, occupies a very different testimonial position from a disinterested bystander, and the cross-examiner is entitled to explore that position.

3. To Shake His Credit by Injuring His Character

This is the most sensitive and heavily regulated category. The cross-examiner may put questions that reveal the witness's dubious moral character — past criminal conduct, dishonesty, professional misconduct — for the purpose of showing the court that this is not a person whose word should be relied upon. However, because of the destructive potentiality of character assassination in cross-examination, the Legislature has hedged this power with a series of protective provisions, which are examined below.

Importantly, the proviso to Section 146 of the IEA (Section 149 of the BSA) — which was inserted first by the 2003 Amendment and then expanded by the Criminal Law Amendment Act, 2013 — provides an absolute bar in prosecutions for sexual offences specified under sections of the BNS/IPC. In such cases, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to her general immoral character, or previous sexual experience, with any person for the purpose of proving consent or the quality of consent. The Supreme Court had already given direction to this effect in State of Punjab v. Gurmit Singh (AIR 1996 SC 1393), where it observed that the court should not sit as a silent spectator while the prosecutrix is subjected to continual and humiliating questioning as to details of the incident or her personal life.

The Safeguards: Regulating the Character Cross-Examination

The law recognises that the power to injure a witness's character can easily be abused, turning cross-examination into what one scholar called forensic bullying. A cluster of provisions — Sections 147 to 152 of the IEA (Sections 150 to 155 of the BSA) — collectively govern this territory.

When the question on character relates to a relevant fact (Section 147 IEA / Section 150 BSA), the witness is compelled to answer it by virtue of Section 132 of the IEA, which provides that a witness cannot be excused from answering incriminating questions. However, the witness's answer cannot be used against him in any criminal proceeding except a prosecution for perjury.

When the question on character relates to an irrelevant matter — relevant only to impeach the witness's credit — Section 148 of the IEA (Section 151 of the BSA) gives the Court the discretion to decide whether or not the witness should be compelled to answer. The Court may even warn the witness that he is not obliged to answer. In exercising this discretion, the Court must have regard to the following considerations:

• The question is proper if the truth of the imputation would seriously affect the court's opinion as to the credibility of the witness

• The question is improper if the imputation relates to matters so remote in time or of such a character that it would not affect credibility

• The question is improper if there is a great disproportion between the importance of the imputation against the witness's character and the importance of his evidence

• The Court may, if it sees fit, draw an adverse inference from the witness's refusal to answer

Reasonable grounds required (Section 149 IEA / Section 152 BSA): No question tending to injure the character of a witness should be asked unless the person asking it has reasonable grounds for thinking that the imputation is well-founded. The illustrations to the section are instructive. If a lawyer is reliably informed — by instructing counsel or by a person present in court who gives satisfactory reasons — that a witness is a criminal, that is reasonable grounds. But asking a witness at random, of whom nothing is known, whether he is a criminal, without any foundation, is not permissible. If the court is of the opinion that such a question was asked without reasonable grounds, it may report the advocate to the High Court or the relevant Bar authority (Section 150 IEA / Section 153 BSA).

Indecent and scandalous questions (Section 151 IEA / Section 154 BSA): The Court may forbid any question it regards as indecent or scandalous, unless it relates to facts in issue or to matters necessary to determine whether the facts in issue existed.

Questions intended to insult or annoy (Section 152 IEA / Section 155 BSA): The Court shall forbid any question which appears to be intended to insult or annoy, or which, though proper in itself, appears needlessly offensive in form.

Exclusion of contradicting evidence (Section 153 IEA / Section 156 BSA): When a witness has answered a question that is relevant only for the purpose of injuring his character, no evidence shall be given to contradict that answer. This is a vital rule to prevent trials from spinning into endless subsidiary enquiries about the character of witnesses. If the witness lies in his answer, he can be prosecuted for perjury. However, there are two exceptions to this rule — first, if the witness denies a previous criminal conviction, evidence may be given of that conviction; second, if the witness is asked a question tending to impeach his impartiality and denies it, he may be contradicted. The illustration to the section is instructive — if a witness affirms that he saw B at one location and is asked whether he himself was at a different location on the same day, and denies it, evidence is admissible to show that he was at that different location, not merely to show that he is a liar, but to contradict the very fact in issue.

Impeaching the Credit of a Witness: Section 155 of the IEA / Section 158 of the BSA

Over and above the questions that may be put in cross-examination under Section 146, the credit of a witness may be impeached in three recognised ways under Section 155 of the IEA (Section 158 of the BSA):

1. By evidence of persons who testify that, from their knowledge of the witness, they believe him to be unworthy of credit

2. By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence

3. By proof of former statements inconsistent with his evidence — the very device of contradiction by previous written statements which is the subject of the next part of this note

The Explanation to Section 155 (Section 158 BSA) provides that a witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give his reasons for that belief — but he may be asked his reasons in cross-examination, and his answers cannot be contradicted.

Contradiction by Previous Written Statements: Section 145 of the IEA / Section 148 of the BSA

This provision embodies one of the most potent and frequently used instruments of cross-examination — the power to confront a witness with his own prior written statements in order to expose contradictions between what he said then and what he is saying now. Section 145 of the IEA (now Section 148 of the BSA) provides:

"A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

The Two Stages of the Provision

The section, as Justice K. Subba Rao clarified in the landmark Full Bench decision of the Supreme Court in Tahsildar Singh v. State of U.P. (AIR 1959 SC 1012), operates in two distinct parts:

First Part — Cross-examination without showing the writing: A witness may be cross-examined as to his previous written statements without showing the writing to him and without proving the writing. The purpose here may be to test the memory of the witness. If the writing were placed before him immediately, the very object of testing his independent recollection would be defeated. The cross-examiner can ask the witness about what he stated earlier and compare the answer to what is recorded in the writing, without the witness seeing it.

Second Part — Contradiction by showing the writing: When the purpose is not merely to test memory but to contradict the witness — to demonstrate a material inconsistency between his present testimony and what he said on an earlier occasion — the procedure becomes more demanding and more protective of the witness's right of explanation. Before the writing can be proved and used against the witness, his attention must be called to those parts of it which are to be used for the purpose of contradicting him. He must be given a fair opportunity to read the relevant portion and to explain the discrepancy, if he can.

As Lord Herschell stated in the celebrated case of Browne v. Dunn (1893 6 R 57 HL): "If you intend to impeach a witness, you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him." This is not merely a rule of professional practice — it is essential to fair play and to the fundamental integrity of the trial process.

What May Constitute a Previous Written Statement?

The section speaks of statements made in writing or reduced into writing. This encompasses a wide range of documents:

• The First Information Report (FIR): The FIR, however, is not a substantive piece of evidence. It is the first information of a cognizable offence given under Section 154 of the CrPC (now Section 173 of the BNSS). Statements in the FIR can be used for contradicting and discrediting the first informant, but cannot be used to contradict any other witness. As the Supreme Court held in Nankhu Singh v. Bihar (AIR 1973 SC 491), an FIR can be used to contradict the person who filed it.

• Statements to the police under Section 161 CrPC (Section 180 BNSS): These statements are specifically governed by Section 162 of the CrPC (Section 181 of the BNSS), which bars their use as substantive evidence. However, under the proviso to Section 162, such a statement may be used to contradict the witness in the manner provided by Section 145 of the IEA. Before using the statement to contradict, the attention of the witness must be drawn to those parts intended for contradiction.

• Statements recorded under Section 164 CrPC (Section 183 BNSS): These are recorded by a Magistrate and can be used both as substantive evidence and for contradiction and corroboration.

• Letters, depositions, case diary entries, and similar documents: All qualify as previous statements in writing or reduced into writing within the meaning of the section. Case diary entries, however, can only be used to contradict the police officer who made them, and not any other witness.

The Supreme Court in Majid v. State of Haryana (AIR 2002 SC 382) held that where a son of the deceased deposed that he saw his mother being killed by the accused, and was sought to be contradicted by his earlier statement that his father had killed his mother, the contradiction could not be allowed because the earlier statement was not in writing. This illustrates the critical importance of the requirement that the previous statement must be in writing or reduced into writing.

Unsigned statements cannot be used as previous statements to contradict. The Supreme Court held in State of Haryana v. Harpal Singh (AIR 1978 SC 1530) that an unsigned statement cannot be treated as a proved previous statement within the meaning of the section.

The Procedure for Contradiction — Step by Step

The procedure that must be followed before contradicting a witness by his previous written statement may be stated as follows:

1. The cross-examiner begins cross-examining the witness about the relevant subject matter

2. The witness gives an answer that differs from his previous written statement

3. Before the writing can be proved and exhibited, the attention of the witness must be drawn to the relevant portion of the earlier statement

4. The witness must be given an opportunity to read that portion and to offer an explanation

5. If the witness admits the earlier statement, no further proof is required

6. If the witness denies having made the statement, the cross-examiner must then prove the earlier statement by independent evidence

In Bhagwan Singh v. Punjab (AIR 1952 SC 214), the Supreme Court held that resort to Section 145 would only be necessary if the witness denies making the former statement. If he admits it, the former statement is established by that admission alone, and no further proof is required.

What Is a "Contradiction" — Material vs. Normal Discrepancies

The courts have consistently distinguished between minor, trivial discrepancies that are the inevitable products of human memory and perception, and material contradictions that go to the heart of the testimony.

In Shyamal Das v. State of Tripura (2018 Cr LJ 771), the Court observed that normal discrepancies are those due to normal errors of observation, errors of memory due to lapse of time, or mental disposition such as shock and horror at the time of occurrence. These are expected even of an honest witness. Material discrepancies, however, are those that are not normal, not expected of a reasonable person, and that go to the core of the witness's account. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do.

In Bishna v. State of West Bengal (AIR 2006 SC 302), the Supreme Court held that omissions in an earlier statement may also amount to contradictions, if the omitted fact was significant and relevant to the context in which the omission occurs. This is specifically clarified in the Explanation to Section 162 of the CrPC, which says that an omission to state a fact in the police statement may amount to contradiction if the omission is significant and relevant.

A witness can be contradicted only when he denies his earlier statement, not when he admits it. As the Supreme Court held in Dhanbal v. State of Tamil Nadu (AIR 1980 SC 628), the contradiction must be between two statements of the same witness. Section 145 is attracted only when two contradictory statements are made by the same witness — the statement of one witness cannot be contradicted by the statement of another.

Illustration

Suppose a prosecution witness C states in examination-in-chief that he saw the accused X stab the deceased with a knife at the spot at 9 PM on the night in question. However, in his statement to the police under Section 161 CrPC, recorded two days after the incident, C had stated that the room was too dark to identify anyone and that he could only hear sounds. The defence counsel in cross-examination first asks C whether his visibility on that night was good, and C again says it was. The defence counsel then draws C's attention to his police statement, calls upon him to read the specific portion where he said the room was too dark, and asks him whether he made that statement. If C denies having made that statement, the defence will then be entitled to prove it by examining the investigating officer and exhibiting the written statement. This is classic contradiction under Section 145 of the IEA.

The Effect of Non-Cross-Examination: A Critical Principle

The law has consistently held that where a party fails to cross-examine a witness on a material point, that failure carries serious consequences. In Mariamma Itty v. K.J. Abraham (AIR 2017 CC 5, Kerala DB), the court held that any fact asserted by a witness, if not challenged in cross-examination by the adverse party, amounts to acceptance of that fact. In Gujua Manjhi v. State of Jharkhand (2015 Cr LJ 4303), it was held that a failure to cross-examine a witness on a particular point entails a presumption that the party not cross-examining has accepted the evidence. This principle — derived from the rule in Browne v. Dunn — is that it is improper, without putting a suggestion to a witness in cross-examination, to later argue that the witness is unworthy of credit on that point.

The Hostile Witness: Section 154 of the IEA / Section 157 of the BSA

One important special category arises when a witness called by a party turns against that party during examination-in-chief. Section 154 of the IEA (Section 157 of the BSA) provides that the Court may, in its discretion, permit the person who calls a witness to put to him any questions that might be put in cross-examination by the adverse party. A hostile witness is one who, from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court. Once the Court grants permission, the party may ask leading questions, may cross-examine as to previous statements in writing, and may seek to impeach the witness's credit under Section 155.

However, the mere fact that a party has cross-examined its own witness does not make that witness unreliable. The Supreme Court observed in Shatrughan v. State of Madhya Pradesh that a hostile witness is not necessarily a false witness. The court can still rely on those portions of the hostile witness's evidence that are credible and consistent with the rest of the evidence on record.

Cross-examination, thus, is not a single-dimensional tool confined to the facts of the incident. It is a multi-layered forensic instrument that encompasses the witness's veracity, his position in life, his character, and his prior statements — all deployed with the ultimate aim of doing justice by separating truth from falsehood in the contentious arena of a trial.