 We say that we have two prayers for the, or puja we say for the tools. So for a lawyer, the knowledge is the biggest tool and to learn the art of cross-examination from a speaker who is well known, Pan Kanatrika and beyond, just like with the participants joining us on different webinars on different perspectives of law. We have gone beyond what we started off as a small steps in Punjab and Hainan High Court. And today we have been able to get resourceful persons and participants not only from one particular state, Pan India and Pan world. And as we all know, just as A.V. Chandrasekhar is a former judge of Kanatrika High Court, is the way he explains every steps in a subtle manner, goes well within the participants and it creates its own deep insights of that topic in its own way. And we are too glad that Trivikram has also joined our platform today. And the art of cross-examination has always been a fascinating part. Yes, I can say, of course, the art of cross-examination or examination in cheat is not in the manner in what is done in movies. That is only more of drama and not with the real. But art of cross-examination is a real nuance, which one learns. As they say, the cross-examination should be short, simple, and we should also know whether the cross-examination of a witness is required or not and whether it meets the goal or the aim for which we want to cross-examine. And they also say that as a lawyer, you should also know when to stop, where to stop, and what to ask. And whether what are the leading questions and whether we can attack the witnesses, whether we can demolish and whether ultimately how the witness becomes a hostile witness and what is the journey of a witness. And in fact, they say the goat of cross-examination itself sometimes takes you a theatric where the witness acts in his own way. Without taking much time, just when I requested Justice Chandrasekhar, I had a price him that we know that all speakers who joined the platform as a resourceful person are known by India. So we don't get into that nitty-gritty that when he started doing his law, when he did that, because it says that means are not important. The ends are important. And as an end, we know that as a judge, his judgments are well read. And as a resourceful person, we have always found that the way he expresses his knowledge on any particular subject is well received without taking much time and especially when it's lunchtime to have instead of the meals, but a meal of knowledge is always better. And the way people are actually joining us live on the Facebook as well as on this platform, it gives only the fact and a flip to our entire thought process that people are actually willing to latch up upon any good knowledge being shared by any good person. Over to you, sir. Namaskar, Kaas Chaturth Ji. Happy Deepavali to all of you in Karnataka. We have two days Deepavali, one on Naraka Chaturthoshi and another on Balipadhyami. Tomorrow is also a part of Deepavali, Balipadhyami. We have all holidays. It's a wonderful occasion to meet the lawyers throughout India on this webinar. It's a great subject. When I think of the art of cross-examination, I remember my lawyer days when I was practicing in a small Mophisl court conducting civil and criminal cases as rightly pointed out by Mr. Vikas Ji. Cross-examination is an art. Art cannot be developed in a day or two. It has to be acquired over a period of time consciously by making honest efforts. Lawyers who are known for their art of cross-examination are in great demand. It's very sad to say that only few lawyers are there who are well versed in cross-examination of witnesses, either in civil or criminal cases. Yes, sir. I'm just checking it out. Oh, he's been muted. I will message you that he's been muted. Egbert Gogh and Karthik. Mekho, he's been muted, probably he's been muted. We're just checking it back. Slight hit, I will talk to you. Vikram, sir is here. Mr. Vikas, sir is not there. You are also muted. No, no, but he says that he's logged in. At least I'm also not able to see him. What we can do is I'll ask you to re-log. Yes. Yes. Now I am able to see, sir. He's joined us. So whenever this aspect of cross-examination clicks to my mind, I go back to my lawyer days. Sir, only one thing, since we were logged out for around 15 minutes, we can start off fresh. Okay. Yes. Sir, this, friends, I wish all of you a joyous Deepavali. In Karnataka, we have two days of Deepavali, one on Narakachaturdashi and another on Balipadhyamit Chumaro. Therefore, our courts are closed tomorrow, Monday also. I'm very happy to join lawyer friends throughout the length and breadth of the country through this platform created by lawyers in Chandigarh, more particularly Mr. Vikas Chhatrat. When Mr. Trivikram, who was coordinating the Advocates Association Bangalore in organizing webinars, requested me to give a talk as per the request of Mr. Vikas Chhatrat. I couldn't say no. Whatever little I have learned must be shared to others is my motto. Friends, art of cross-examination necessarily means art. Art cannot be acquired in a day or two. It has to be acquired over a period of time, the two-by-conscious application of mind to the facts of the case. Cross-examination is a powerful weapon in the hands of the advocate of wearing for the adversary. Indian Evidence Act has enormously dealt with this aspect of examination in chief, cross-examination, re-examination and power of the court to treat particular witnesses to be cross-examined by the party calling that witness under section 154 of CRPC. Friends, before going to the nitty gritties of art of cross-examination with reference to some of the important provisions of the Indian Evidence Act, I would like to give my own personal experience as a sessions judge at Udupi. Udupi is a wonderful, amazing temple town in Karnataka on the west coast. I was the principal district and sessions judge there. A criminal case, a sessions case was conducted by the prosecution. Accused was in his mid-1930s, age about 38 or 39 years. He was a young, hail and healthy, well-built man. The gravemen of the charge leveled against him was that without there being any sudden and grave provocation he had assaulted his father with a wooden reaper on his head as a result of which he fell down and died and breathed his lost. He was in judicial custody. The distance between Mangalore city on the west coast and Udupi, which is also on the west coast, is about 63 kilometers. I was the additional sessions judge at Mangalore also. On my transfer and as appointed as a principal district judge, the advocate who used to appear, a young advocate who used to appear before me in sessions court at Mangalore, had taken up that case of the accused. I had read over the charges in Kannada language known to him. On that day he had understood it fully and said that he does not plead guilty and had claimed to be tried. Accordingly I had fixed the trial and issued summons. The alleged incident of assaulting his father and causing his murder was stated to be done in the presence of his own mother, that is the wife of the deceased. The accused was from a very remote village in Udupi, Thaluk called as Manipur. Not state out of the seven northeastern state, a small village in Manipur. He was from a depressed class. Mother was a rustic villager, prosecutor examined her. In the examination in chief, she virtually supported the cross-examination. In the examination chief, she virtually supported the case of the prosecution in its entirety. But only one thing she had deposed was that Soon after assaulting his father, he went inside the kitchen and took the pot containing the boiling rice and poured on the stomach of his father who was already dead. And thereafter he went inside the room and slept. Of course, this was not the case of the prosecution in its charge sheet. Be as it may. The young educate who had put in about four or five years of experience was cross-examining the vital witness, that is CW1 examined as PW1 the mother. She was the only eyewitness, she was a rustic villager. She was giving, she had given a true account of what she had seen from her own eyes on that fateful day. The young advocate was finding it very difficult to cross-examination, to cross-examine PW1 and elicit certain useful admissions or to destroy her credibility. It took almost 45 minutes. I was just observing. At that point of time, the accused was in the dock, accused dock, was turning his head to the right, to the left, to the up and down many a times. He was behaving as though he was unconcerned with the trial. Trial, in which the charge was murdering his own father. I observed it for about five minutes, closely. Then I requested the advocate to stop the cross-examination and asked him as to whether he could see the abnormal behavior of his client. He said, no. I put him a direct question as to whether you had evaluated him properly before taking up cross-examination. He said, nobody had come to him to give any instructions. Therefore, he could not meet him even in the jail. That was not expected of an advocate practicing in a criminal court, that too defending a accused in a serious murder case. Then I allowed him to cross-examine. And I put a vital question, invoking section 165 of the Evidence Act to PW1, the mother, and drew her attention to the abnormal behavior of her son in the court. She said, he would always do like that. Even if there was to be any delay of five minutes in offering food, he would throw the plate at her and go away. And this was a routine experience in her life. I suspected something. Normally, an accused who commits the so-called murder will not be in the place the moment the offense is committed. Natural tendency is to run away from the place. He goes inside the house, sleeps, and prior to that, he brings a pot, boiling pot with rice and pours on the dead body of his father. This was one unnatural event which was not noticed by the advocate. And the unusual behavior of the accused in the dock. And after listening to her reply to my question, I thought that he had some, I suspect that he had some serious problems, mental problems, mental illness. Then it was about 1.45 pm. I asked the advocate to stop the cross examination and file an application by 3 pm to refer to a psychiatrist, I think section 329 of CRPC. Then he filed, then I conducted a small inquiry by putting questions to PW1 and found that it required a thorough psychiatric evaluation. I referred the accused to one of the senior most psychiatrists of government hospital, Megan Hospital at Mangalore, government hospital at Mangalore. After 15 days of evaluation, the doctor submitted a report that the accused was suffering from serious hallucinations and delusions. Then it was a clear case of section 84 of IPC. If a person does an act without knowing the legal consequences of the same, benefit of doubt could be given. Of course, it is a general exception found under section 84 of Indian Penal Code. And the accused is to probabilize such defense in view of section 105 of the Evidence Act. I referred it to Nimhaan's Mangalore after three and a half months of thorough psychiatric treatment, the doctor therein referred the accused back to the court holding that he was able to stand the trial, the trial was conducted, the doctor who had initially evaluated him, that is the psychiatrist of Mangalore was called as a witness, thorough examination is done. And in fact, the lawyer was finding it a little difficult and I put some certain questions because he is an expert, doctor is an expert in terms of section 45 of the Evidence Act. And the only question that was to be treated, considered was whether the accused was suffering from such serious illness when the incident of murder took place. So the doctor said that it must be a chronic case and it was a case of no treatment at all. And as a result of the same, the illness was progressing very fast. And he also gave an opinion that the likelihood of murdering his father under because of serious mental illness at that point of time cannot be ruled out. This was a very vital answer given by him, an expert which could not have been jettisoned by me, I considered the whole evidence and acquitted the accused giving benefit under section 84 of Indian Penal Code. Why I'm bringing to the knowledge, notice of all of you is that a lawyer who ought to have been very diligent during the course of cross examination, a lawyer who ought to have evaluated the accused before taking up the case for trial, it would have ended in conviction. Fortunately, I was able to observe the unusual behavior of the accused very closely and as a result, otherwise it would have ended in conviction. What I would like to impress upon all of you is to that, that a thorough preparation is required, either examining a witness in chief or cross examining a witness. Of course, in civil procedure code, because of the amendment, question of examination in chief is virtually given up. An affidavit will be sworn to by the concerned witness and that would be considered as proof of affidavit. And he will enter the witness packs and say that all the contents have been prepared at his instance and they are true and correct. That becomes the examination in chief but in cross in criminal case, even to this day, the examination in chief, oral examination in chief is very much relevant. And as a result of the same code can avoid leading questions and questions which are unconnected to the core issue. Friends with this case in background, let us go to the statutory provisions, some of the important provisions of Indian Evidence Act. My request to all of you that to those advocates who are practicing in trial codes, whether on civil side or criminal side or both, must always have an evidence act bear act in their hand, whether they have a case on that day or not. Just go through the provisions of Evidence Act. Evidence Act is one of the wonderful acts that the Britishers had formulated. It is relevant even to this day. It has remained unamended except for some amendments carried out to Indian Evidence Act because of the introduction of Information Technology Act and some presumptions under section 113A, 113B and 114A. That's all. Evidence Act is nothing but gist of the wisdom of people. Wisdom of people who have understood men and matter and the world around. Examination in chief, cross examination and re-examination, all are found in section 137 of the Evidence Act. It deals about examination in chief, cross examination and re-examination of evidence. Section 138 deals about the manner in which this examination in chief, cross examination and re-examination shall be done. Section 145 deals about the scope of confronting this previous statement that witness and relevant matters in question and cross examination of that witness. It also speaks about the steps to be taken prior to cross examination. Section 146 deals about the questions which could be lawfully put during the course of cross examination. All sundry questions can't be put, only lawful questions can be. That means they should revolve around the core issue. Relevancy is also very much applicable while cross examining a witness. Though a little greater leverage is given to an advocate, cross examining a witness, it doesn't mean that he can travel outside the relevancy or core of the issue. Section 147 speaks about a witness as to when he can be compelled to answer. Section 148, power of the court would decide when questions shall be asked and when witnesses be compelled to answer. Section 149 speaks about questions not to be asked without reasonable grounds. Section 150 speaks about the procedure of court in a case of question being asked without reasonable ground. Section 151, indecent and scandalous questions. 152, questions hinted to insult or annoy. 153, exclusion of evidence to contract. Contradict answers to question testing veracity. 154, questions by party to his own witness. Section 155 speaks about the manner in which the witness can be, the credit worthiness of a witness can be impeached. Out of cross examination is used for two purposes. One is constructive purpose and another is destructive purpose. Constructive purpose is one to put questions on behalf of the opposite party to the witness already examined to build the case of the adversary. Some useful questions are put and answers are elated which will be the foundation of the case of the adversary. Destructive is to impeach the credit worthiness of the witness. There is no hard and possible that only one of the two must be adopted. Either constructive cross examination may be done or destructive cross examination may be done or both may be done. It all depends upon the facts of the case. Friends, the senior in which, the chamber in which I was groomed, my senior was always telling, Mr. Chandrasekhar, make a list of those questions which shall not be asked. So, while doing cross examination, whether in a civil or criminal case, the advocate must be conscious of what questions to be put and what questions should not be put. This is very, very vital. I have seen many attempts as a judge, advocates cross examining a witness on a particular aspects and putting number of questions and then finding it difficult because that intelligent witness knows the area around which questions are asked and he will be alert. They don't shift their goal post. Suppose a witness, let us assume that in a criminal case, a witness is examined as though he is an eyewitness. The police will have recorded this statement only to buttress the fact that he was present on the, at this part, on the day and time when the alleged incident took place. The prosecution will have examined him with that in mind only. It is true that the advocate cross examining that witness must necessarily confine to the relevancy of that witness being an eyewitness. Nevertheless, the witness who speaks about the incident must also have, will also have some idea about the place where the incident took place or if he knows the accused or if he knows the deceased or if he knows the victim, change the goal post. What is the goal post that a particular set of questions intended to be put, they are being put. Witness is alert. Lawyer is finding it difficult to elicit useful admission or discredit his credibility. Then you'll have to say you have to ask something about the connection he had with the accused. He had with the deceased. Some other facts if he is a neighbor, some other facts put seven or eight questions, then change another change to another goal post, then come back after 17 or 18 questions. You come back by the time the witness will have forgotten the most of the answers given by him to the earlier questions. This is very much relevant in a criminal case. Friends, please understand in a civil case, readings are found, they are the foundation, issues will be framed, there will be documentary evidence and the decisions of the constitutional courts will have greater significance, especially of the Supreme Court. They are binding precedents under Article 141 of the Constitution of India. But in a criminal case, the accused can keep quiet. He need not explain his stand even when examined under Section 313 of CRPC. The prosecution will have examined the witnesses. The only powerful weapon that is available in the hands of the adversary is to cross-examine the witness, elicit some answers which discredit his credibility or give some favorable answer to the defense taken up on behalf of the accused. Why I gave the example of Udpi Sessions Court is a lawyer who ought to have made sufficient preparation at fail virtually. As a young advocate, but that would not be an excuse to conduct a very serious case of murder. In cross-examination, the relevant aspects to be looked into are the demeanor of the witness. Even CPC Order 12 of CPC speaks about the power of the court to record the demeanor of the witness. The party can advocate for the opposite side can request the court to make a mention of the demeanor. Similarly, Section 280 of CRPC speaks about the obligation of the court to record the demeanor of the witness. Let us assume that a witness who is very intelligent and very sharp in giving answers does not answer for three minutes keeps quiet. Once again that question is put here. Again, he keeps quiet because probably he may be thinking about the effects of the answer that he intends to give. He may be contemplating many things. A witness who was very sharp enough to give answers to earlier questions doesn't answer even after the lapses of three or four minutes putting the same question twice or twice and stands in a dumb position or stands in a position of serious thinking, pondering over the matter and the advocate appearing for the adversary must request the court to make a demeanor of the witness because this demeanor recorded by the judge and if the same judge disposes of the case, applying the demeanor he has recorded, it becomes a strong foundation and normally the appellate courts will not interfere with the observation made by the judge during the course of evidence that to when the demeanor is recorded and the reasonable inferences drawn by him on such demeanor. Therefore, this is a very important issue. Section 137 states that examination cross exam examination will be examination in chief will be put by cross examination and re-examination of a witness is allowed when certain clarification is required with regard to the confusion that has set in, that was set in as a result of examination in chief and cross examination. So for re-examination of a witness the prior permission of the court is required. Section 138 deals about the procedure or the manner in which it shall be done and this scope of the examination in chief and cross examination. 138 is very, very important and I would like to draw your attention. The adverse party so desires cross-examine then if the party calling some so desires 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. Section 138 states that even the cross-examination should revolve around the relevant questions relevant to the case. So relevancy as all you know is a very important aspect in evidence. If irrelevant evidence is to come on record it would be very difficult for the judge to prove the same while assessing the evidence. Therefore all precautions will have been taken by the judge to make irrelevant evidence inadmissible but that doesn't mean that they advocate for the adversary should confine only two relevant facts. He can go beyond the relevancy but they must relate to the controversy in question. Friends after the examination in chief many a times few times council appearing for the opposite side. Let us say in a different council in a civil case you may say I have no cross would take no necessity to cross-examine him. We have seen wonderful advocates not cross-examine or they will cross-examine the witness of the adversary when it comes to the question of examining their own witness they say we don't examine because they will be sure that the initial burden cast upon the plaintiff's witness is not effectively discharged as a result of which the suit will fail. If a party who comes to the court seeking certain reliefs does not discharge the initial responsibility irrespective of the lacuna found in the case of the adversary the suit will fail which is the mandate of section 102 of the evidence act therefore lawyers will be very very guarded as to lead evidence on their side if favorable answers are already elicited from the witnesses examined on behalf of the plaintiff and they favor the case of the defendant and the if the defendant case is made out through effective cross-examination question of examining the witness on behalf of the defendant's does do not arise so this is 139 138 if a person section 139 says if a person is called to produce a document he will be relevant only to the production of the that document for example as in a sub registrar's office the book containing the thumb impression of the executors whether a sale deed or a gift deed or a will will be called the witness a second division assistant or a clerk from the sub registrar's office comes to the court and produces that book he is not expected to speak anything about so if a witness is asked only to produce document he can't be called to tender any evidence unless he is called to depose also so this is one category of witness then one party witness to character may be cross-examined and re-examined because those witnesses will speak about the character leading questions as all of you know leading questions shall not be asked by the party calling him so in the examination in chief no leading questions shall be put to the witness then comes when section 141 when such leading questions may be put by the party calling him a has called be as an attest or attesting witness to the sale deed he wants him to speak about the attestation his attestation to the sale deed he comes to the court on the summons not issued by the plaintiff he feels ignorance about his signature found on this registered sale deed he feels ignorance about the contents of the document or something else connected with the registration then the purpose is defeated then he can request the court to permit him to cross-examine and at that time if the court is satisfied permission will be accorded to the advocate calling the witness to cross-examine so cross-examination under section 141 the cross-examination done soon after examination in chief is different from cross-examination done with the permission of the court so section 140 which speaks about leading questions and section 142 specifically speaks when they must not be asked section 143 speaks about the scope of cross-examining the witness by the party calling him 144 evidence as to matters in writing and 145 is very relevant most of the advocates I'm sure are not thorough about this provision section 145 which we call as confronting a document or a statement made by a witness earlier and putting questions to him section 145 is relevant and we have to read the question in its entirety and to understand the scope of the same what does it say a witness may be cross-examined as to previous statements made by him in writing are reduced into writing and relevant to matters in question without such writing being shown to him are being proved but if it is intended to contradict him by the writing his attention must be must before the writing can be proved be called to those parts of which of it which are to be used for the purpose of contradicting him let us assume A is a witness for playing B and he had given evidence in some other case and his evidence is recorded if the opposite party that is the defendant were to make use of the earlier statement of this witness for the purpose of cross-examination second part of section 145 of evidence act mandates that a minimum foundation must be laid that means whether your name what is your name what is your father's name what is your vacation what is your where is which is your native place and whether he had given statement evidence before such and such a court and such and such a date so this foundation must be laid before confronting that copy of the evidence of that witness recorded earlier so unless that foundation is laid it can't be confronted to him section 145 section 145 of evidence act is such a revolutionary provision in the evidence act that if a person that if a witness has some document in his say a shared pocket and if that document is helpful to the opposite party some decisions say the advocate can snatch it and confront it to him of course before confronting the same he must lay a foundation as per the second part of section 145 of the evidence act these before confronting these the statements or any other document to which he is a secretary foundation must be laid 146 speaks about questions which are which can be lawfully put in cross examination section 147 speaks about the witness to be compelled to answer to certain questions and if such questions are put to him and compelled to answer court has to decide as to when such question should be asked and when such witness compelled to answer 149 mandates that questions not to be asked without reasonable grounds therefore reasonable ground whether there is reasonable ground or not the court has the duty to say whether that question is to be allowed or not 150 procedure of court in case of question being asked without reasonable grounds so if there are there is no basis for putting such question and it is found to be unreasonable court said court will say no we will not allow 151 indecent and scandalous question shall not be asked court will have to forbid them questions which intend to insult or annoy must not to must not also be allowed by the court unless such questions are relevant for the purpose of impeaching the credit worthiness of the witnesses 153 exclusion of evidence to contradict answers to questions testing veracity when a witness has been asked and has answered any question which is relevant to the inquiry only so far as it relates to shake his credit by inquiring enduring his character no evidence shall be given to contradict him but if he answers falsely he may afterwards be charged with giving false evidence hence then comes very important provision section 154 questions by party to his own witness normally a party calling the witness cannot put leading questions section 154 enables the court to permit a party calling such witness to put leading questions if he has resiled from his for the purpose if he has resiled from the purpose for which he is called let us assume that the prosecution wants to examine cw1 as an eyewitness in a murder case his statement is already recorded in terms of section 161 of CRPC by the police and is a part of the charge sheet filed under section 173 he gives a go by if he is ignorant about his presence at the spot at the relevant point of time he denies having witnessed the incident that means the answers given by him in the examination in chief are virtually contradicting the contents of the statement recorded under section 161 of CRPC by the police then the prosecutor with the permission we got put leading questions and cross examine him so as to bring him back to the rail any attempts it may not be possible but the court will give permission under such circumstances and it is not an unqualified section court must be satisfied about the purpose for which the witness needs to be cross examined by the very party calling him then the most important question is the section is 155 impeaching credit of witness I have already saw a witness can be cross examined for the purpose of impeaching the credit worthiness yeah witness can be cross examined constructively to elicit some answers so that it can support the case of the adversary when it can be done when his credit worthiness can be impeached the credit of a witness may be impeached in the following ways by the adverse party the content of the one by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit many a times he will have given evidence and his witness his evidence is rejected by the court in several cases so he will be a witness who's who does not have any credit worthiness then by proof that witness has been bribed or has accepted the offer of bribe or has received any other corrupt inducement to give his evidence I take the notice of all the advocates to subsection 2 of section 155 the credit worthiness of a witness can be impeached if there is acceptable material to show that he has been either bribed or he accepted the bribe or bribe had been offered and he has received or he was gullible for any other corrupt practice normally many a times questions would be put to the prosecuting investigating officers you have taken money especially in prevention of corruption you have taken money in order to harass the accused you and to help the complainant you have done like this but be careful while putting such questions those subsection 2 of section 155 enables to impeach the credit worthiness of an opposite witness the advocates will have to be very confident because the party on whose behalf he was cross examining may say I had never given instructions I had never given instructions therefore in the coastal area of Karnataka especially in Mangalore courts and would be courts when they want to put such questions in terms of subsection 2 of section 155 they say that they have clear instructions from their client that you have accepted the bribe even before putting such questions they will take consent from the witnesses otherwise they will be hauled for putting perjury the advocate may be hauled up for perjury by the witness to whom such questions are put therefore advocates must be guarded by putting while taking up defense in terms of section subsection 2 of section 155 of the evidence act then 3 by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted this is also found in section 145 so subsection 3 of section 155 is virtually found in section 145 of the evidence act if a party intends to confront the statement the evidence of a witness recorded earlier or to draw the witness of any document to which he is a signatory he can do it by confronting the same after laying foundation to show that his statement given in the court today contradicts his statements given earlier on the same set of facts are revolving the same issue friends while a witness is being examined cross-examined and re-examined court can also put some questions normally courts will not put any questions to the witnesses but section 165 of the evidence act is a wonderful weapon in the hands of a judge because a judge is a person interested in ascertaining the truth he is a Satya Shodhak therefore he can put any questions to any witness relevant or relevant at any point of time and order for production of documents this assumes relevance when an expert is being examined before a court for example in in the case of a handwriting expert the case is that the documents are the signatures are concocted signatures found on the disputed document are not genuine they are got-up signatures so while examining the expert who has submitted a report because he is an expert in terms of section 45 of the evidence act section 73 mandates that a court is a witness an expert of experts with regard to handwriting and the seal normally courts will not take upon themselves the risk of examining the disputed signature or handwriting with the admitted signature or handwriting or the seal unless a report is obtained from the expert who has an experience experience of having verified questioned documents over a period of time that too after obtaining requisite qualification nevertheless courts for example in a motorbike vehicles case a doctor will be examined about the injuries sustained by an injured he will have to ascertain as to whether those injuries are simple or reverse and whether those injuries are permanent in nature and whether those injuries being permanent nature have affected his vocation normally the judges will not be knowing the technical terms that a doctor uses either a neurosurgeon or an orthopedic surgeon or an eye specialist or a psychoanalysis under such circumstances because they will be experts therefore courts while examination of circumstances take place they will put questions to ascertain those technical terms in simple language which would help them in properly analyzing the evidence section 165 is also a very important aspect of late a new act has come into force from November 2012 it is called as protection of children from sexual offence act in the case of Sakshi honorable supreme court way back in 2004 had laid down certain guidelines what were the what are those guidelines guideline with regard to putting a parada in between the victim of rape and the alleged rapist accused and not allowing questions to be directly put to the witnesses on the other hand questions to be put either by the prosecutor or on behalf of the accused to be made available in writing to the judge and the judge would then filter such questions and then allow proper questions to be put now it finds a statutory place in section 33 of the Poxo act it mandates that the advocate or the prosecutor who intends to put questions to the witnesses must give those questions in advance to the judge who will filter such questions and then allow only allow only proper questions to be put because as all of you know offences against women and children are very serious in nature they are already if a woman is raped she is dead for all practical purposes all of you know in gurumid Singh versus state of Punjab 1996 to a CC honorable justice Anand has eloquently explained the different facets of a rape case how the delay in such cases will have to be not taken serious note of and how evidence of the victim in rape cases will have to be evaluated and it is further said that no corroboration shall be normally insisted in rape cases similar is the position with regard to the Poxo act lawyers who intend to appear on behalf of the accused in Poxo cases must be on guard must prepare a list of important questions to be put on behalf of the accused to the relevant witnesses and they must make lot of homework thanks what I want to bring to your notices while cross examination is being done only few advocates prepare set of questions to be put to the witness always make it a point to frame proper questions to be put during the course of cross examination if you formulate a question anticipating a certain answer from the witness you may not get the answer at all therefore plan B questions must also be ready you think that you will put a question to the witness like this and the answer would be like this okay if that intended answer is elicited by virtue of your question it is all right you are successful if such answer doesn't come from the mouth of that witness then you will be in difficulties then you will think of your whole line of cross examination will be disrupted therefore always prepare questions to be put to the witnesses during the course of cross examination those questions with which you are sure to elicit answers in your in favor of your client they are called as positive questions there are certain questions you may get or you may not get it therefore plan B must also be ready many a times some documents will have to be confronted keep in mind second part of section 145 of the evidence act to lay a clear foundation to confront such documents or statements of the witnesses I caught it earlier if you intend to use on behalf of your client friends if you google you will the internet you will get a lot of material on the art of cross examination okay they're all good they will definitely help you but you must be present whenever you have no work keep keep yourself busy in a court where evidence is recorded whether it is a civil case or a criminal case keep a bear act of evidence act and CRPC with you friends I would like to take all of you to section 161 of the CRPC 161 of CRPC enables the police investigating agency to record the statement of the witnesses who are conversant with the facts of the case facts of the case either having seen a an offense or being an attestor to the spot mahajar or recovery mahajar or having known the victim are accused as the case so police will record the statements under section 161 and no signature or thumb impression shall be obtained is the mandate for such statement is it not section 162 how to make use of this statement so recorded by the police while cross examining on behalf of the accused it can't be used for the purpose of corroboration because section 162 of CRPC is very clear what does it say no statement made by any person to a police officer in the course of an investigation into this chapter shall if reduced to writing be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose except as here in provided at an inquiry or trial in respect of any offense and investigation at the time of when such statement was made that means it shall not be used for the purpose of corroboration but first information report in terms of section 154 of a CRPC can be used both for the purpose of corroboration and also for the purpose of contradiction but so far as a statement under section 161 is concerned it shall not be used for the purpose of corroboration what does proviso say provided that many when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as a force it any part of a statement if duly brewed may be used by the accused and with the permission of the court by the prosecution to contradict such witness in the manner provided by section 145 of the evidence act that means if the prosecution which has called the witness and that witness has turned hostile it can be cross examined to the limited extent possible under section 145 and nothing in subsection 2 nothing in this section shall be deemed to apply to any statement falling within the provisions of class 1 of section 32 of evidence act suppose if a witness with the victim whose statement is recorded by the police and he has spoken about the cause of death and if he is no more that becomes that section that statement will become a statement under section 32 as though it is a dying declaration explanation is very important an omission to state a factor circumstance in the statement refer to in subsection 1 may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs as to whether any omission amounts to a contradiction in the particular context shall be a question of fact what is this contradiction omission whether omission is a serious contradiction we are thinking which ought to have been disclosed by the witness to the police when his statement was recorded under section 161 and if he doesn't disclose and discloses for the first time in the court it becomes an omission whether such omission is a serious contradiction you know in the leading decision the honorable supreme court in the case of Tashildar Singh versus state of UP AIR 1959 supreme court page 1602 it's a bench consisting of six honorable six great judges it was a split decision of four is to two just his case subram was on behalf of the majority and justice Hidaya Tala was on behalf of the minority judge a wonderful judgment wonderful decision anybody cross examining the witnesses in a criminal case any advocate practicing on a criminal side must necessarily know this decision of AIR 1959 supreme court page 1602 Tashildar Singh versus state of UP on the basis of that decision this explanation is introduced to section 162 of this ERPC so an advocate cross examining especially in a criminal case must be thorough with contradiction omission amounting to contradiction friends I have dealt with the important aspects to be kept in mind while cross examination those who have no opportunity can definitely cultivate this habit it is not impossible it may be a little difficult one has to be conscious you have to thoroughly read the case papers if you are appearing for client if and if you want to cross examine the witnesses on behalf of examined on behalf of the defendant you must know the case put for by the parties in their pleadings and the documents filed and marked as exhibits and the leading decisions applicable to those cases lot of homework is required even in a criminal case cross examination if you want to cross examine a witness with regard to a topography you have to necessarily visit this spot if you want to cross examine a witness who is examined who will be examined to support the case of the prosecution of having witnessed a murder you must know how he is connected with the accused is he in any way antagonizing antagonistic to the accused if so in what manner if you know the background of these witnesses it will be helpful for you to impeach the creditworthiness of such witnesses for example I tell you in a murder case let us assume only one witness is the eyewitness a has murdered b she has witnessed the murder a b c all belong into one village rampur rampur it's a small village of 150 houses the alleged murder take place in the broad daylight near a peepal tree in front of the village he is the only witness and he was available in the village right from the date of incident he had not left it police does not record the state and there is also and there is no reference of this witness in the first information report and the statement of this witness is recorded five days after the alleged incident on the ground that he had seen witnessed the murder and he was present when the murder took place see if a witness had really seen the murder and if he was really present in the village in which the unfortunate incident took place the normal course of the that witness to bring it to the notice of the police at the earliest or if the police have come to know of the same to record his statement earlier at the earliest having not done so and having recorded the statement of such a material witness five days after the incident the argument that would be advanced is and if he's somewhere antagonistic to accused or he's very closely related to the deceased the argument that would be advanced is is a planted witness therefore the lawyers while cross-examining the witnesses must know the date on which such incident took place the dates on which the statements of such material witnesses are recorded and other matters connected with the same and this is how you should do and friends i would like to just reiterate the wonderful cautions given in one of the papers relating to art of cross-examination what does it says be brief as possible only short questions to be put that to in plain words ask only leading questions because when cross-examining you have no inhibition you can put leading questions let it be straight leading questions never ask a question to which you do not already know the answer many a times some young friends ask questions without knowing the consequences of the same and when such answers are with such unexpected answers come they will be in a dilemma listen to the answer be patient listen to the answer carefully do not quarrel with the witness this is one thing on no account you should quarrel with the witness and the witnesses which come to the who come to the courts or the ice and years of the courts you must respect them what ben thama said is there are ice and years in the court and they enable the court to ascertain the truth respect them if witnesses are ladies stand at a reasonable distance from them they may be witnesses of your opposite side but nevertheless they deserve all honor all respect and please understand most of the time the witnesses who come to courts maybe rustic villagers maybe illiterates maybe people suffering from abject poverty treat them say the entire court atmosphere is a new atmosphere to them they will be confused as to the place to which they have come so many a times they will not be in a comfortable position make themselves feel comfortable you are you are entitled to put one thousand questions but not indecent questions unless those indecent questions are put with an intention to discredit the impeach the credit worthiness of such witnesses do not allow the witnesses to explain don't make them to give explanation so that the admissions already obtained by you are favorable answers elicited from him are not diluted do not ask the witness to repeat the testimony she gave in chief because there is already a record of it either in the affidavit filed in the examination chief in civil cases or the examination in chief conducted by the prosecution they are already there you can make use of them then avoid long questions too many that means put simple direct questions don't put compound or complex questions clubbing one or two questions as and may trying to confuse the witnesses courts will be guarded and they do not allow such questions save the explanation for summation don't allow the witnesses to some of the case it is not the case of it's not the duty of the witnesses and avoid repetition of questions and when you repeat a question and they if the other side takes an objection and if you honestly feel says sorry to him and if the witness or the other side a docket is bullying and the and coming in your way of decent cross examination be firm and take the assistance of the court and whenever it is required request the court to record the demeanor of the witness whether in civil or criminal cases and that would be a vital part in the evidence and that could be helpful to you and as a dockets you owe a duty to the court you owe a duty to the society in which you live and you owe a duty to the client who has engaged you to defend him effectively these three duties are to be meticulously followed you have to be courteous to the court you have to you have you should always come prepared normally judges appreciate those advocates who come well prepared and who do their duty is passionately after all judges are also part of the system of recording evidence and giving an appropriate decision on the basis of the evidence on record friends many many aspects can be dealt with but for paucity of time I feel that we should end it I'm very glad that our friends in Chandigarh have taken up this task and they have say given a link to share my little experience as an advocate and judge I had been a judge for almost 23 years recording of evidence was a great passion for me Mr. Trivikram might have seen me recording evidence and disposing of cases I never I found difficulty either in recording evidence or disposing of cases like very very courteous to me and very very cooperative I love them and ultimately it is the strength of the lawyers it is the intellectual capacity of the lawyers that is decisive in the judiciary because only good advocates can become good judges and judiciary draws its sustenance from an effective bar and I'm very happy that under the able leadership of the Chandigarh advocates more particularly our Vikas Chhatrajji these seminars are these useful seminars are organized I'm very happy that I'll be ready to share what little experience I have gained over a period of time with my young friends who could become good advocates and at some point of time they can also add on the bench thank you thank you there couldn't have been a more lucid manner in which you have taken the things forward and the another fascinating fact was that despite the fact that it is a lunch time and being a holiday but people just it sometimes happens in a webinar that people do log in but they also log out early but here we had a constant participation not only here but also on the Facebook and one could understand the way you passionately gave the insights that the manner in which you would be dispensing the manner of the judgments and recording of the evidence that passion actually came forth we have few questions yes one of the questions is about the the rights of the victims it is true that after the concept of victim being defined in this in section 2 WA of CRPC which is enforced from 30 12 1999 2009 I think no no victim is also an important stakeholder in a criminal trial we have to respect therefore I have said that victims witnesses are with victims who come to the court must be respected and they must be and decent questions should be put and all honor should be extended to them and section 357 a of CRPC mandates that even in cases of acquittal if the case merits the court is bound to recommend for compensation Poxo Act section 33 8 mandates invariably for awarding compensation and the parameters to be kept are found in rules 7 of the Poxo rules of 2012 11 parameters have been in this under which sections witnesses can be record for cross examination since the cross examination stands already done and 154 of CRPC states that if a witness who is called by a particular party and if it doesn't support the case or so it doesn't support the purpose for which he is called then with the permission of the court under section 154 the party can cross examine him there need not be an order that he has turned hostile if the court will have to say the purpose for which he is he is called and whether he has complied with it if it doesn't if it is not complied with then the court will normally grant permission to cross examine such in and on whether any provision in the evidence act to confront a document to the witness without producing him in the court no section 145 states that if you intend to use the contents of the document you must lay a foundation and then only confronting section 145 is very clear otherwise there is no useful purpose would be served without confronting that document and putting certain questions this is regarding demeanor how it is how is it relevant when the examination of witnesses are before the master before the master master means i don't know i am myself surprised no no demeanor section 280 of CRPC and specifically mandates that the demeanor of a witness shall be recorded by the judge similarly order 12 also of cpc mandates that and demeanor i gave an example you see a witness who was quite strong enough and giving answers quickly to all the questions and thinks over thrice four times and doesn't answer even after three three minutes four minutes in spite of repeating it twice then he may be pondering over whether the answer he is likely to give would affect his case or that's why so demeanor so in spite of putting questions two times the witness has not answered even after the lapse of four minutes though he was able to answer all the questions earlier quickly so if that demeanor is then question and answer will be noted and demeanor of the witness will also be noted this is by colonel janak raj hostile witnesses how to deal with them hostile witnesses this is section 154 of the evidence act hostile witness it doesn't mean that if a witness is hostile he may be hostile to a particular aspect he may not have turned hostile to the entire aspect that part of the evidence of a hostile witness which is favorable to the prosecution or which is favorable to the party calling him can be definitely looked into will have to be definitely looked into by the court it doesn't mean that it has to be rejected in its entirety it all depends upon the facts of each case. This is by Nikhil the documents were tendered in court at evidence stage some are exhibited and some are marked and opposite party takes a general objection to all the objection all exhibits are subject to mode of roof is there any need to call the witnesses to prove the exhibited documents which are certified copies obtained with the rti and cd with the with section 65 b certification. Therefore say what happens is all of you know very well that r to seven and r to eight necessarily mandated that all pleadings must be invariably accompanied with documents referred to or relied upon the party may be in possession of the same or may not be in possession of the same if the party in possession of the same those documents they must be necessarily accompanied with the pleadings and if he is not in position he must state who is the lawful custodian of such documents as you said suppose there may be instances of obtaining documents after the pleadings are completed and if they are bound to be relevant for an appropriate decision in the case necessary application shall be filed seeking condonation of the delay and that can be allowed also subject to additional written statement or rejoinder as the case may be once you advocate of supreme court with whom I was talking a few years earlier he was telling that all advocates must be thorough in procedures therefore CRPC CPC evidence act if you are thorough in these three cases he was jokerly mentioning half of the work could be done in supreme court also half of the work would be done in supreme court also my request to all the young advocates is to purchase a bear act of evidence act without fail go on reading it one section by section one section a day would be sufficient similarly one section in CRPC one section in CPC you will see so they are not only procedural laws sir they are even substantive laws though evidence act appear to be a procedural law it tends itself to be a substantive laws take for example section 27 of evidence act recovery may recovery of an incriminating article made at his instance though statement made by an accused in police custody is inadmissible in evidence under section 26 but section 27 is a proviso to section 26 any statement made which distinctly leads to the discovery is admissible in evidence in a several case contradiction statement witness made by the defendant what is the result it's a it's a matter of assessment of evidence you have to argue that the witness is the witness statement is contradictory to the to his own documents see documents say something he's relying upon those documents for a set of reason and if these pleadings are contradicting with the contents of the statement you have to take necessary benefit of the same and request the court this is by sir welly sir welly sir welly legal what if the court puts the leading questions to the witnesses and the examination in chief in a criminal trial can the defense advocate oppose it normally normally courts would not use section 165 they are not expected to use it at their whims and fancy section 165 will have to be used exceptionally the two when it requires I mean see uh uh uh at all in a criminal criminal trial uh is a journey to unravel the truth is it not exceptional circumstances under exceptions court can put that too when some experts have come and courts are not very well equipped with those evidence then court may put questions see section severely section 313 of CRPC what does it say normally section 313 of CRPC is invoked only after the evidence of the prosecution is closed all the incriminating materials will be picked up and put to the relevant uh uh put to the accused to draw his attention but it also mandates that at any point of time the court may put any question will the court put court's vote put subsection 1 of section 313 will not be usually invoked similar is the case with section 165 but understand see for example what does it say court should not be mere spectators or umpires it should not allow the contest to develop and ultimately say who has won and who has lost 1981 supreme court Ramchandra versus state of Rihanna followed by 1997 you know Anifa versus uh state of Rajasthan by justice KT Thomas wonderful decisions of under section 165 of CRPC a evidence act normally but see whenever court is court is not an umpire to decide wherever it's active role is required for example see order 10 1 a b c preliminary inquiry will have to be done under c p c is it not such safeguards are there but normally uh courts won't uh uh put questions the to an examination chief is going on yes the last question we will be taking since we had when we have requested you we don't normally go beyond one hour 30 minutes this is by ashwarya when the witnesses says i don't know through the throughout the cross examination what is the impact of the same so it's an evasive so see questions are put answers are evasive then the credibility of the witness will be at stake the court while the concerned advocate arguing will say this is this the evidence of this witness is unacceptable as its credit worthiness imp here is a witness who is evasive who doesn't answer any questions therefore no uh credence shall be attached to the that witness the evidence of that witness would be the argument and court may accept it also depending upon the evasiveness of the answer this is the last question by raj this isn't in case two 161 statements of the complainants uh which witness to be used for contradiction as dates in section 161 statements recorded after one 161 were uh after one year were changed noticing wrong dates and others too what is the way forward no no see whether those statements are manipulated and uh anti dated they will have to be uh looked into and if uh really there is any material in the case diary you can request the court to look into the case diary the court can look in look into uh for uh satisfying itself to the case diary then court will look into and the dates are manipulated and you can put questions relevant to those uh surrounding the same yes we are sorry to all those participants with whose questions we could not take but we believe that the time has disconnected sir early because the connection will be there i think he will log back and he will extend the vote of thanks we'll wait for just a few seconds yes yes as usual yes sir is it audible yes you're audible Mr. Vikas now we are not able to hear you again you are muted yeah so when Vikram had told us uh though i had already known that sir your webinars are well received within the society and i can only say that when Vikram had suggested your name it acted as a catalyst point and you were kind enough to succeed at a short quick short time of request but the indebable mark which you have created in our minds the way the art of process examination should be done we are all going to cherish this webinar for all times to come and since as they say that uh in the evidence we say that there is a link evidence i can only say that uh Vikram became the link point between you us beyond law and the all advocate span India over to you Vikram for proposing a vote of thanks thank you so much Mr. Vikas for giving me this wonderful opportunity i had i am blessed to practice before his lordship i uh before the honorable high court and i also i used to interact when his lordship was the director of the banglore mediation center used to always accommodate our requests whenever i used to ask for uh accommodating the students for a mediation visit and he has also blessed uh addressing our advocates association webinars and today in a very short notice his lordship uh accepted our invitation as usual it was intriguing and erudite scholarly presentation by his lordship uh sir on behalf of Mr. Ravikas Chhatrat and my personal behalf my sincere gratitude to you for our scholarly presentation thank you so much sir thank you thank you very kind of you thank you sir everyone thank you thank you everyone stay safe stay blessed enjoy the festive season thank you thank you sir once again happy the valley to all of you sir same yes same thank you so much