Submitted to:-
Submitted by:-
MR. TUSHAR VED SAXENA
SARTHAK GAUR
ASST. PROFESSOR OF LAW
B.A., LL.B. (H)
AMITY LAW SCHOOL, CENTRE-II
SEMESTER-7 SECTION-‘B’ A11911112086
ACKNOWLEDGEMENT A research project of such great scope and precision could never have been possible without great co-operation from all sides. Contributions of various people have resulted in this effort. Firstly, I would like to thank God for the knowledge he has bestowed upon me. I would also like to take this opportunity to thank Mr. Tushar Ved Saxena without whose valuable support and guidance, this project would have been impossible. I would like to thank the library staff for having put up with my persistent queries and having helped me out with the voluminous materials needed for this project. I would also like to thank my seniors for having guided me and culminate this acknowledgement by thanking my friends for having kept the flame of competition burning, which spurred me on through the days. And finally my parents who have been a support to me throughout my life and have helped me , guided me to perform my best in all interests of my life , my grandparents who have always inculcated the best of their qualities in me.
SARTHAK GAUR
WHAT IS CROSS-EXAMINATION?
Examination of witness consists of the following three stages: 1. Examination-in-chief 2. Cross-examination 3. Re-examination After the party calling a witness has finished the examination-in-chief, the opposite party has a right to cross examine the witness. Cross-examination, if properly conducted, is one of the most useful and efficacious means of discovering the truth. According to sec. 137 of the Evidence Act, “the examination of a witness by the adverse party shall be called his crossexamination.” Cross-examination need not be confined to the facts to which the witness had stated in his examination-in-chief. Therefore, the question in cross-examination also must be relevant to the fact which was required to be proved by that witness. Leading questions may be asked. A witness may be cross examined as to the previous statements made by him in writing or reduced in writing. There is no provision which says that cross-examination should be confined what is volunteered by witness and cannot be directed to challenge or clarify the answers given in cross-examination. Cross-examination is considered the most powerful weapon. According to Philip Wendell, it is double-edged weapon, if you know how to wield; it helps to cut enemy’s neck. Otherwise, it cuts one’s own hands. A misleading question should not be allowed in cross-examination. If no opportunity is given to cross examine a witness his evidence must be excluded from consideration. The evidence of witness, examined before the charge is framed, but not produced for cross-examination, is not admissible.
QUESTIONS LAWFUL IN CROSS-EXAMINATION
Sec. 146 of the Evidence act deals with the 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.] ” In addition to the questions which may be asked in cross-examination under the provisions of Sec. 138, a witness may be further asked the questions mentioned in Sec. 146. This section extends the power of cross-examination far beyond the limits of Sec. 138 which confines the cross-examination to relevant facts including the facts in issue. The scope of this section is wider than that of Sec. 138 and is more extensive in scope. The expression “hereinbefore referred to” refers to Sec. 138, paragraph 2. In R. Di neshk um ar D eena v. State, u/s 146 of the Evidence Act, during cross examination, it is lawful to ask questions which may or may not be relevant to the matter in issue for anyone or more of the three purposes mentioned in S.146 of the Evidence Act, although the answer may directly or indirectly incriminate him. These questions related to the trustworthiness of the witness. (1) To test his veracity- a witness may be cross examined not only as to the relevant
facts but also as to all facts which reasonably tend to affect the credibility of his testimony. This is generally spoken of as cross examination to credit; in as much as a large part at any rate of the facts which are relied on for the purpose are facts which touch the credit and good name of the witness. But no such cross examination can be legitimate unless it has some reasonable bearing on his credibility. The statements of a witness being testimonial of their nature, it is right to subject them, to impeachment in the appropriate ways. So it is competent to the parties to put almost any question in
cross-examination, which he may consider important to test the accuracy or veracity of the witness. A witness may always be subjected to a strict cross-examination as a test of his accuracy, his understanding, his integrity, his basis and his means of judging. (2) To discover who he is and what is his position in life- it is common practice to
make inquiry into the relationship of the witness with the party on whose behalf he is called- business, social and family- also to inquire as to his feeling towards the party against whom his testimony in a proper light with reference to bias in favour of one party or prejudice against the other.
(3) To shake his credit by injuring his character- in determining the relevancy of
character as affecting the credit to be given to a witness the first question is what kind of character is relevant? Whether, bad moral character in general or some other specific bad quality in particular is admissible. The assault on the character of witness must be directed only for the purpose of shaking his credit. In Babu Rao Patel v 1
Bathakeray, , it was said that “Questions should not be directed towards laying bare
with private life of the witness.” Scandalous questions if relevant are to be put. The object of the law is to show the character of the witness as to telling the truth. The credit of a witness can be said to have been shaken only if it can be shown that he is not a man of veracity, and not that he is of bad moral character. A black-marketer is not necessarily untruthful not a non-black marketer necessarily man of veracity. In 2
Deepchan d v. Sampath r aj , it was held that it is perfectly open to a lawyer to put
questions to a witness in cross-examination in order to shake his credit by injuring his character and the mere fact that the answer to such questions may directly or indirectly tend to criminate the witness is no justification to refuse to answer such questions. the lawyer must be satisfied that there are reasonable grounds for thinking that the imputation which it conveys is well founded, since if such questions are put, the injury is done.
1 2
1978 CrLJ 1937 AIR 1970 Mys 34; 1970 CrLJ 260
CROSS EXAMINATION IN RAPE CASES
It is not permissible to put questions to a prosecutrix pertaining to her general character when the petitioners requested to screen blue video recording of the prosecutrix indulging in sexual acts. Questions which have no relevance to the issues before the court and which are apparently directed to cause discomfiture, if not humiliation, to the victim of sexual offences should not be permitted. Exception:
It has been provided that in case of rape or attempt to commit rape it shall not be permissible to put questions in cross-examination of the prosecutrix as to her general immoral character. Therefore, the order of rejecting petitioner’s request to screen or show blue video recording of the prosecutrix indulging in sexual acts is proper. 3 In Di lbhaj an Singh vs. State Of Pun jab it was said that in a rape case, it is not possible to
put questions to a prosecutrix pertaining to her generally immoral character. Similarly, Subsection (3) of Section 146 of the Indian Evidence Act provi, des that when a witness is crossexamined, the defence can ask him question which tend 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, but the aforesaid provision has been added to this sub-section by the recent amendment. Now, in a rape case, the accused cannot be allowed to adduce any evidence to prove that the prosecutrix was having any immoral character, prior to the date of occurrence. Such kind of video recording, if shown in the Court room, will definitely amount to impeach the general character of the prosecutrix and to embarrass her in the Court, which exactly is not permissible under the law.
3
2004 CrLJ 3152
ADMISSIBILITY OF TAPE RECORDED STATEMENT
Certain important points to be noted for Sec. 146 are:i. ii. iii.
This section is applicable only for cross-examinations. Permission of court would be required while making questions. These questions cannot be considered as Defamation because permission of court is taken. Hence Section 500 of Indian Penal Code, 1860 does not arise.
iv.
Court has discretion to reject questions which are unnecessarily provocative or mere harassing.
v.
A statement recorded in a tape recorder can be used as corroborative evidence.
The tape itself is the primary and direct evidence admissible as to what has been said and picked up by the recorder. A previous statement, made by the witness and recorded on tape, can be used not only to corroborate the evidence given by the witness in the court but also to contradict the evidence given before the court, as well as to test the veracity of the witness and also to impeach his impartiality. Thus apart from being used for corroboration, the evidence is admissible in respect of other three matters, u/s 146(1), exception 2 to Sec. 153 and Sec. 155(3). The weight to be given to such evidence is however distinct and separate from the question of its admissibility. 4
In Pratap Singh v. State of Pu nj ab , the SC held that the rendering of a tape recorded conversation can be legal evidence by way of corroborating the statement of a person who deposes that the other speaker and he carried on the conversation and even of the statement of a person who may depose that he overheard the conversation between the two persons and what they actually stated had been tape-recorded that weight to be given to such evidence will depend on the other facts may be established in a particular case. But a tape-recorded conversation is admissible in evidence. 5 In R.M. M alkani v. State of M aharashtr a , it was held that a tape-recorded conversation is
admissible, provide first, the conversation is relevant to the matters in issue; secondly, there is identification of the voice, and thirdly, the accuracy of the tape-recorded conversation is 4 5
AIR 1964 SC 72 (1973) 2 SCR 417; AIR 1973 SC 157
proved by eliminating the possibility of erasing the tape-recorder. The tape-recorded conversation is, therefore, a relevant fact under Sec. 8 of the Evidence Act and is admissible under Sec. 7 of the Evidence Act. It is res gestae. It is also comparable to a photograph. The tape itself is primary and direct evidence admissible as to what has been said and admissible as to what has been said and picked up by the recorder.
