Confrontation of Witness During Cross-Examination

Introduction

Witness examination is an integral part of a trial. Witness testimonies are essential to evidence as the person making the statements has witnessed the incident. Section 135 to 165 of the Indian Evidence Act of 1872 deals with the examination and cross-examination of witnesses. The heart and soul of proceeding is cross-examination, a core aspect of the trial process, including criminal and civil. The object of the cross-examination is to elicit truths and detect falsehoods in the testimony of a witness. A cross-examination is conducted to destroy the witness’s credibility or reliability.

What is cross-examination?

The term ‘examination’ asks relevant questions regarding the facts issued to a witness. The stages of ‘examination’ include Examination in Chief, Cross-examination, and Re-examination. The Evidence Act in India prescribes the Examination of witnesses in civil and criminal cases. In civil matters, the plaintiff can begin (Order XVIII, Rule 3 of CPC) when the prosecutor or complainant begins issues in a criminal case. The Examination of a witness by the party calling him is a chief examination; by the other party, it is a cross-examination Section 137 of the Evidence Act.

Relevant points regarding cross-examination

• A fair opportunity to cross-examine must be given to the opposite party.
• The adverse party has the right to cross-examine, but the party calling a witness can cross-examine if he turns hostile. A co-defendant can conduct cross-examination if his interest is opposed to that of the defendant.Without a chief examination, the cross-examination cannot be conducted.
• If any evidence produced by police on interrogating a witness is prejudicial to the accused, cross-examination without examination in chief is permissible.The court can question the witness if he is confused during cross-examination.
• Cross-examination is conducted viva voce.
• A fact is non-disputed after cross-examination if the opposite party fails to challenge any statement of fact made by a witness during the examination in chief.
• If the adverse party waives the right to cross-examine, they cannot make any grievances about it.

General Rule

Contradictions in the witness’s statements must be proved per the procedure prescribed under the Indian Evidence Act of 1872, or they would have no evidentiary value and would not be admissible. The general rule says that a witness can be contradicted by their previous statements that are made by him either in writing or reduced to writing.

As discussed above, the purpose of cross-examination has three aspects: the first one is to test the veracity of the statement made by a witness in his examination-in-chief, the second purpose is to shake/impeach his credit, and lastly, it is to elicit from that witness any relevant facts which may be favourable to the case for the cross-examiner. The right to cross-examine the witness by the accused is an essential element for a fair trial, a fundamental right of every accused. Similarly, the court must try the accused to satisfy itself regarding the reliability/credibility of the witness.

XXX v. State of Kerala, 2022 LiveLaw (Ker) 383: Judgment Analysis

Facts of the Case

The petitioner is the accused in the instant case under the POCSO Act before the Fast Track Special Court. The accused person faces trial for the offences punishable u/s 354 (Assault or criminal force to woman with intent to outrage her modesty: Proposed Section 73 of The Bharatiya Nyaya Sanhita, 2023), 341, 323 of the Indian Penal Code (IPC) and Section 7 r/w 8, 9 r/w 10 of POCSO Act. The prosecution alleged that the accused kissed the victim girl of 11 years on her lips and inserted his tongue into her mouth. The victim girl was the stepdaughter of the accused.

The victim girl and her mother were examined. During the examination of the mother, the counsel for the accused wanted to confront her about the contradictory statement on her earlier divorce petition. When the document containing the contradictory statement was put to the witness, the court below denied the opportunity, stating that the document had to be produced in the court’s office. The lower court did not allow questions regarding the statement given by the mother in her earlier divorce petition.

The accused approached the High Court to seek a direction from the lower court permitting cross-examination of the victim’s mother with the previous statement in her divorce petition by confronting contradictory portions in her statement without insisting on producing the same in advance.

Observations of the High Court

• From the above, it is evident that the relationship between the mother of the victim and the accused was strained, and there was a matrimonial dispute between them.
• The accused’s counsel wanted to contradict a statement given by her in an earlier divorce petition. Hence, the victim’s mother confronted the certified copy of the divorce petition.
• As alleged by the accused, the lower court stated that the document must be produced three days before. The accused has every right to confront a document to the witness during the examination of the witness.
• The accused’s counsel contended that the surprising factor would be lost if the document was produced in advance.

Decision of the Court

A document confronted by a witness during the cross-examination regarding a previous statement need not be produced in the court in advance. The High Court disagreed with the view of the lower court.

Justice Kauser Edappagath added that it was not necessary to produce the document in advance before the court and that such a mandate would deprive the element of surprise involved in the same. “The accused has every right to confront a document to the witness during the examination of the witness. If the accused is directed to produce the document in advance, the surprising element will be lost. It is settled that a document confronted to a witness during the cross examination, especially relating to a previous statement given by the witness, need not be produced in court in advance.”

The counsel for the accused has already produced the document before the lower court. The High Court issued the following directions to the lower court:

Recall the victim’s mother and allow the accused counsel to cross-examine the witness by confronting the contradictory portions in the statement in her divorce petition already produced before the court.