CROSS

EXAMINATION/EXPERT
EVIDENCE PROJECT
Analyze the essential requirement and abilities for the cross examination
of the prosecution witness as well as defense witness

A3221515091
BBA LL.B (H)
SECTION B
TH
7 SEMESTER
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my faculty Mr. Indranil

Banerjee. who gave me the golden opportunity to do this wonderful project on the topic-

Analyze the essential requirement and abilities for the cross examination of the

prosecution witness as well as defense witness, which has also helped me in doing a lot

of research and I came to know about so many new things, I am thankful to him for that.

Secondly, I would also like to thank my parents who helped me a lot in finalizing this

project within the limited time frame.

ANVIT SEEMANSH

A3221515091
 INTRODUCTION

The evolution of society depicts that at every stage there has been some means of check

over the conduct of individuals. Right from ancient times to present day, every society

has its own codes of conduct and has enforced it with certain sanctions, designated to

bring and maintain harmony. Our basic canon of Criminal jurisprudence is that the

accused is innocent till proved guilty and that the accused is entitled to a just and fair

trial.

A Law which prescribes fair and reasonable procedure for curtailing in Article 21 of the

Constitution of India has still to meet a possible challenge under the other provisions of

the Constitution. In crime, investigation is the first and foremost tool to detect crime. It

is generally noticed to the omissions and lapses on the part of investigating officers.

Those omissions and lapses are to be ignored in presence of credible testimony of

different witnesses. The authenticity is given to such investigation so that the faith and

confidence of the people in the Law enforcement agency, and administration of justice

is not shaken. A fair trial, no doubt, should be governing equally the accused, the

prosecution or the victims. Prosecution in a Criminal trial gets an opportunity to first

lead evidence. The defense cross examines the prosecution witness to escape their

veracity.

According to Bentham, "Witnesses are the eyes and ears of justice." The great

philosopher and the thinker of his time Bentham righty emphasized on the relevancy of

witnesses. However, the witnesses get traumatized and harassed in our Criminal Justice
System and it is an open secret, which needs no second thought. Unnecessary

adjournment for recording the statement of the witnesses in courts, cause them

harassment. The witnesses, especially complainant in case of sexual offences, not only

face harassment due to repeated adjournment for recording of their statement but also

face humiliation and embarrassment.

DEFINITION OF WITNESSES

A witness in a criminal trial plays a pivotal role in a determining the fate of the case.

The word "witness" has been defined nowhere in the Criminal Procedure Code. A

witness may be defined as one who gives evidence in a case, an indifferent person to

each party, sworn to speak the truth, the whole truth and nothing but the truth.

According to Black’s Law Dictionary, “Witness is one who sees, knows or vouches for

something or one who gives testimony, under oath or affirmation in person or by oral or

written deposition, or by Affidavit".

According to Bentham, "Witnesses are the eyes and ears of justice”. According to J.

Wadhwa,"A criminal case is built on the edifice of evidence, evidence that is admissible

in Law. For that witnesses are required, whether it is direct evidence or circumstantial

evidence".

In Madhu @ Madhuranatha V. State of Karnataka, the term ‘witness’ means a person

who is capable of providing information by way of deposing as regards relevant facts,

via on oral statements or statement in writing, made or given in court or otherwise.

A ‘witness’ is normally considered to be independent unless, he springs from sources

which are likely to be tainted and this usually means, the said witness, has cause to bear,

such enmity ,against the accused ,so as to implicate him falsely.

Witness is also explained under various foreign laws as person, possessing, and relevant

information of criminal proceedings. It Includes Experts Judicial Officers and others

who agreed to provide any Information of an offence being investigated.

PROCEDURE FOR EXAMINATION OF WITNESSES IN

CRIMINAL TRIALS

Section 135 of Indian Evidence Act, 1872, states Order of Production and Examination

of Witnesses: -The order in which witness are produced and examined shall be regulated

by the law and practice for the time being relating to civil and criminal procedure

respectively and in the absence of any such law, by the description of the court.

Section 137 of Indian Evidence Act, relates to procedure for the examination of a

witness in a criminal trial. Witnesses shall be first examined- in- chief, then cross-

examined, then if the party calling him so desire, re-examined. The examination and

cross- examination must relate to relevant facts, but the cross -examination need not be

confined, to the facts to which the witness testified, on his examination- in- chief.

The re-examination shall be directed to the explanation, of matters referred to, in cross

examination; and, if new matter with the permission of the court is introduced in

reexamination, then the adverse party, may further cross examine upon that matter. It
does not deal with admissibility of evidence, but merely lays down three processes to

which a witness may be subjected, in order to obtain from him, his full evidence.

The Evidence Act follows the English Common Law Procedure for the examination of

witnesses. The party calling the witness examines him first, and this is called the

examination-in-chief. Then the opposite party test the credit and veracity of the witness,

and this is called the cross examination. After this the party calling the witness has again

the right of questioning the witnesses with a view to enable the witness to explain

anything which may have been elicited from him on cross examination. The

examination of witnesses is concluded in this manner before the next witness is called

by the party leading the evidence. Public prosecutor has the right to examine the

witness. Specially, whose examination is necessary for unfolding the prosecution case?

Only those witnesses are required to be examined whose examination appears necessary

for unfolding the prosecution story.

IMPORTANCE OF WITNESSES

The role of a witness is paramount in the Criminal Justice System of any country. Assistance of

witnesses is necessary for the judge to conclude the case. Their role at the trial is important. In

Adversarial system, the prosecution prove its case, by using evidence which is challenged by the

defense. There are two important factors which have emerged in a criminal procedure for the

status of victims and the significant rise in the terrorism and organized crimes.
The witnesses face challenges to their life and their families. Further, those who are associated

with the police to help in crime prevention are also exposed to risk .Therefore, witnesses should

be protected under the law.

A witness though wholly truthful is liable to be overawed by the court atmosphere and the

piercing cross examination made by the council and out of nervousness may mix-up facts, get

confused regarding sequence of events or fill up details from imagination on the spur of the

moment. The sub conscious mind of the witness sometimes so operates on account of the fear of

looking foolish or being disbelieved through the witness is giving a truthful and honest account

of the occurrence witnessed by him. Perhaps, it is sort of a psychological defense mechanism

activated on the spur of moment.

NUMBER OF WITNESSES

Section 134 of Indian Evidence Act, 1872 defines: - "No particular number of witnesses

shall in any case be required for the proof of any case.” Conviction can be based on the

testimony of a single witness, if he is wholly reliable. Corroboration is necessary when

evidence is partial. If evidence is explicit and free from criticism, and the court is

examined that the witness is reliable and speaking the truth, then, conviction can be

based only on his evidence.

Under the Roman and the Common law, the effect of evidence was governed strictly by

the numerical system. Testimony was counted, not weighted, one oath being in no case

sufficient. The India Evidence Act, attaches more importance to the quality than to the

quantity of evidence, by providing that no particular number of witness, is in any case,

required for the proof of any fact. Proof of a fact would depend upon the character of
the witnesses and their competency to speak to that fact it is not enough to prove a fact,

as a number of witnesses would assert it. No fixed number of witnesses are required to

prove a fact.

Even the testimony of one witness is sufficient. Therefore, a conviction based on the

testimony of a single witness, or of the complainant alone is legal. Non examination of

some more witnesses to the occurrence is not fatal to prosecution case. The maxim that,

"Evidence has to be weighted and not counted" emphasizes that the number of witnesses

is immaterial.

COMPELLABILITY AND COMPETENCY OF WITNESS

The most fundamental questions relating to witness are those of competence and

compellability .These questions are not related to any particular evidence which a

witness might be exulted rather they deal, with the basic question of, whether a

particular witness has a heart to give evidence at all (competence) and whether a witness

has a legal obligation to give evidence if called upon to do so, which the court can

enforce (compellability). A witness is said to be competent, if the court lawfully

receives his evidence, and compellable if the court may require him to give evidence

over his objection. The proper time for determining the competence of a witness is

before the witness has begun to give evidence, unless his incompetence emerges for the

first time, at a letter stage, in which case the objection should be made at that time.

The only test laid down by the Act of the competency of a witness in his capacity to

understand and rationally answer the questions put to him. If from the extent of
intellectual capacity and understanding a person is able to give a rational account of

what he has seen or heard, or done on a particular occasion, his competency as a witness

is established. In the case of a child witness, therefore, the question on which his

competency is not whether he can understand the obligation on an oath but whether he

can understand and answer in a rational manner the question put to him.

VERACITY OF EVIDENCE OF THE WITNESS

Veracity of the evidence of the witness to be doubtful must be explicitly clear. It should

be taken into consideration by his evidence cannot be ignored, whether delay has

affected his deposition in the court or there was a likely hood that witness was influence

or was acting as a interested witness.

The Hon' be High Court has correctly appreciated the evidence and in recording a

finding that there was no opportunity to this witness to concoct any false case, no error

is committed. There is no hard and fast rule to test the veracity of the witnesses. One

way of testing the veracity of the witness is the simplicity of the statement. Simplicity of

the statement is indicative of the natural and truthfulness. Best check on the veracity of

witness is the test of normal human behavior. If the behavior of the witnesses is

unnatural and grossly against normal human conduct, that itself, is a strong

circumstance in doubting the story projected by him. The court observed that if

independent persons were not willing to tell the police that they had seen the incident,

the prosecution cannot be blamed for not examining independent persons, as

eyewitnesses and veracity of the evidence of the witnesses examined as eye witnesses,

cannot be doubted on that ground.

The court further observed, that the high court was not justified in disbelieving the

evidence of the eye witness on the ground. Under those circumstances, it was too much

to expect that he should have noticed the presence of two witnesses and assume that

they had seen the incident. While scanning the evidence of various witnesses, the court

has to inform itself that variances on the fringes, discrepancies in details, contradictions

in narrative and embellishments in essential parts cannot mitigate against the veracity of

coming of the testimony provided there is the impress of truth and conformity it the

probability in the substantial fabric of testimony delivered.

PRESENT SCENARIO OF CRIMINAL JUSTICE SYSTEM

The Criminal Justice System consists of four main components-police, prosecution,

prisons and court. The agencies are collectively responsible for apprehending,

prosecuting and sentencing offenders, keeping in view the interest of the accused, the

victims and the society at large. These agencies prevents the social control and the

crime. The basis objectives of the criminal justice system are to be maintained the rule

of law and to promote a sense of security among the members of the society.

In the past few decades, the criminal justice system has come to face formidable

challenges, arising mainly out of growing variety and complexity of crime. Criminals

have become technically sophisticated, and have been using highly advanced means of

communication to disturb peace and security of nation. Criminals have been taking
advantage of a loopholes of the adversarial justice system which revolve around the

statement of witnesses. Until the middle of 20th century, witnesses were forgotten

despite the fact that they are the back bone of criminal trial. Criminal case is built on the

evidence, for which witnesses are required. If they turn hostile, there is no other support

to help criminal justice functionaries to punish the accused.

The Principal aim of Criminal Law is, to ensure the right of the accused to a fair trial.

Simultaneously, the interest of the state lies in prosecuting the crime and obtaining

credible and legally tenable evidence from the witnesses. Witnesses are entitled to

protection from intimidation, considering the crucial role played by them in the delivery

of criminal justice. State provides a protections to the prosecution witnesses. There is no

such mechanism to protect the defense witnesses, who are likely to be intimidated at the

hands of the states. There are gaps in the existing legislation that needs to be fixed. The

Criminal Justice particularly the police system bring the manifestation of state power

and the human rights being largely available against the state .The two are inextricably

linked, though inversely. Since, the criminal justice system of every country originated

in the colonial period, the norms and the value of the colonial system in here in it. The

Criminal Justice System of the colonial time was obviously in accordance with the

needs of the police state for keeping of the people subjugated.

The continuance of such a system in the post-independence period of the welfare state

is a basic contradiction which goes against the needs and aspirations of the people and

has the effect of negating their basic rights. The inequitable economic and social system

of our country provides a befitting base for continuance of the brutalities of the police

system. Needless to say, no sincere effort has been made for making the operational
Criminal Justice System particularly the police system to conform to the basic rights of

the people and the constitutional welfare norms taking in view the prevalent economic

and social system.

ANVIT SEEMANSH
A3221515091
BBA LLB (H)
Section - B, 7th Semester.