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How to Examine & Cross-Examine Witnesses

The Indian Evidence Act is not strictly applicable to departmental inquiries, but its provisions have significant relevance, as examination/cross examination of witnesses in substance is materially for the same purpose both in a law court and in a departmental inquiry. It is therefore pertinent to study the provisions of the Act, with reference to examination witness.

Provisions Covering Examination of Witnesses In The Court
(Sections 137 to 140 of Indian Evidence Act)

Examination-in-chief is the examination of a witness by the party who calls him

.
cross-examination is the examination of the witness by the adverse party.
Re-examination is the examination of the witness subsequent to the cross-examination by the party who called him.
The evidence of witnesses shall be taken in open Court in the presence and under the personal direction and superintendence of the Judge.

The examination of a witness by the party who calls him shall be called his Examination-in-Chief. It must relate to relevant facts. No leading questions can be asked. The object of this examination is to get from the witness all material facts within his knowledge relating to the party's case. It is the duty of the counsel to bring out clearly and in proper chronological order every relevant fact in support of his client's case to which the witness can depose. The statements made in examination-in-chief lose much credibility and weight unless they are put into the crucible of cross-examination and emerge unscathed from the rest.

The examination of a witness by the adverse party shall be called his cross-examination. The purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination
[Maganlal Vs. King Emperor AIR 1946 Nagpur 126].

The object of cross-examination is to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining party. Cross-examination, though a very powerful, is also a very dangerous engine. It is a double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed. To wield it to advantage requires a great practice and natural tact. It should be keep in mind that the essence of cross-examination is, that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause, or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. But if the adverse party has had liberty to cross-examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-examined.

When witness not to be Cross Examined: -

A witness summoned merely to produce a document;

A witness sworn by mistake
A witness whose examination has been stopped by the judge before any material question has been put is not liable to cross-examination;
A witness giving replies in answer to questions by the Court can only be cross-examined as to credit;
A witness, who has given no evidence in chief, may not be cross-examined as to credit;
>The Court may disallow cross-examination used simply to oppress and not for the purpose of justice;
Witnesses to character, though liable to be, are in fact rarely cross-examined.
Witnesses shall be first Examined-in-Chief, then (if the adverse party so desires) cross-examined, then (if the party calling him 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.

The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matters, by permission of the Court, introduced in re-examination, the adverse party may further cross-examination upon that matter. The right to re-examination a witness arises only after the conclusion of cross-examination and it shall be directed to the explanation of any part of his evidence given during cross-examination, which is capable of being construed unfavorably to his own side. The object is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination.

The examination of witnesses is viva voce. It is always in the form of questions and answers. Where a question is objected to and yet allowed by the Court to be put, the question and it answers are taken down verbatim. At the end of the deposition, it is read out to the witness and signed by the Presiding Officer.

The procedure followed in departmental inquiries is almost identical. Here in the place of the judge, the Inquiry officer moderates on the examination/cross-examination of witness by both parties. It is also relevant to study what CVC has provided by way of guidelines, as it is an expert body in respect of conducting departmental inquiries.

Cross-Examination of Witnesses - Guidelines of CVC from its Manual

In departmental proceedings the rules of evidence laid down in the Evidence Act are, strictly speaking, not applicable and the Inquiry Officer, the Presenting Officer and the charged public servant are not expected to act like judges or lawyers. The right of the Government servant to cross-examine a witness who has given evidence against him in a departmental proceeding is, however, a safeguard implicit in the reasonable opportunity to be given to him under Article 311 (2).

The scope or mode of cross-examination in relation to the departmental enquiries have not been clearly set out anywhere. But there is no other variety of cross-examination except that envisaged under the Evidence Act. It follows, therefore, that the cross-examination in departmental enquiries should, as far as possible, conform to the accepted principles of cross-examination under the Evidence Act.

Cross-examination of a witness is the most efficacious method of discovering the truth and exposing false-hood. During the examination-in-chief the witness may say things favourable to the party on whose behalf he tenders evidence and may deliberately conceal facts which may constitute part of the opponent's case. The art of cross-examination lies in interrogating witness in a manner which would bring out the concealed truth.

Usually considerable latitude is allowed in cross-examination.

It is not limited to matters upon which the witness has already been examined-in-chief, but may extend to the whole case.

The Inquiry Officer may not ordinarily interfere with the discretion of the cross-examiner in putting questions to the witness. However, a witness summoned merely to produce a document or a witness whose examination has been stopped by the Inquiry Officer before any material question has been put is not liable to cross-examination
It is also not permissible to put a question on the assumption that a fact was already proved.
A question about any matter which the witness had no opportunity to know or on which he is not competent to speak may be disallowed.
The Inquiry Officer may also disallow question if the cross-examination is of inordinate length or oppressive or if a question is irrelevant.
It is the duty of the Inquiry Officer to see that the witness understands the question properly before giving an answer and of protecting him against any unfair treatment.
Re-examination of witness

After cross-examination of witness by or on behalf of the Government servant, the Presenting Officer will be entitled to re-examine the witness on any points on which he has been cross-examined but not on any new matter without the leave of the Inquiring Authority. If the Presenting Officer has been allowed to re-examine a witness on any new matter not already covered by the earlier examiner/cross-examination, cross-examination on such new matter covered by the re-examination, may be allowed.

Examination of a witness by the Inquiry Officer

After the examination, cross-examination and re-examination of a witness, the Inquiry Officer may put such questions to the witness, as he may think fit. Such a witness may be cross-examined by or on behalf of the Government servant with the leave of the Inquiry Officer on matters covered by the questions put by the Inquiry Officer.

Record of evidence

A typist will be deputed by the Inquiry Officer to type the depositions of the witnesses to the dictation of the Inquiry Officer. The depositions of each witness will be taken down on a separate sheet of paper at the head of which will be entered the number of the case, the name of the witness and sufficient information as to his age, parentage and calling, etc., to identify him.

The depositions will generally be recorded as narration but on certain points it may be necessary to record the questions and answers in verbatim.

As evidence of each witness is completed, the Inquiry Officer will read the depositions, as typed, to the witness in the presence of the Government servant and/or legal practitioner or the Government servant assisting the delinquent officer in his defence. Verbal mistakes in the typed depositions, if any, will be corrected in their presence. However, if the witness denies the correctness of any part of the record, the Inquiry Officer may, instead of correcting the evidence, record the objection of the witness. The Inquiry Officer will record and sign the following certificate at the end of the depositions of each witness:- "Read over the witness in the presence of the charged officer and admitted correct/objection of witness recorded."

The witness will be asked to sign every page of the deposition. The charged officer, when he examines himself as the defence witness, should also be required to sign his depositions. If a witness refuses to sign the deposition, the Inquiry Officer will record this fact and append his signature. The documents exhibited and the depositions of witness will be kept in separate folders.

If a witness deposes in a language other than English but the depositions are recorded in English, a translation in the language in which the witness deposed should be read to the witness by the Inquiry Officer. The Inquiry Officer will also record a certificate that the depositions were translated and explained to the witness in the language in which the witness deposed.

Copies of the depositions will be made available at the close of the inquiry each day to the Presenting Officer as well as to the delinquent officer.

Recorded Statement of witnesses - Accepting Directly
as Evidence- Guidelines of CVC

The question whether statements made by the witnesses during the preliminary inquiry/investigation can be straightway taken on record as evidence in examination-in-chief at oral inquiries has been examined by the Department of Personnel & AR. On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accordance with the principles of natural justice to take on record the statements made by the witnesses during preliminary inquiry/investigation at oral inquiries, if the statement is admitted by the witness concerned on its being read out to him. By adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. Instead of recording the evidence of the prosecution witness, de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance (at least 3 days) of the date on which it is to come up for inquiry. As regards the statement recorded by the Investigating officers of the CBI, which are not signed, the statement of the witness recorded by the Investigating Officer will be read out to him and a certificate will be recorded there under that it had been read out to the person concerned and has been accepted by him.

The above are from the guidelines of CVC contained in their Manual. This is supplemented by additional information on the subject, that is pertinent

How to Moderate Questioning by either Side while
Examining/Cross-Examining Witnesses

What if vulgar questions are asked, or questions impeaching the personal character of the witness, which are not relevant to the inquiry asked? The Indian Evidence Act, gives clear guidance. This section is covered in Chapters 5 and 6 of the Project Literature on Evidence Act, included as a subject in the Legal Supplement. A link is provided to the subject in Chapter-5. You may visit chapter-5 and peruse the contents to the extent desired and once you know the law, the implementation will be easier in a commonsense-backed departmental inquiry. Avoid the technicalities of the law, but accept the spirit thereof. Questions are intended to be asked to bring material facts and to establish the veracity or otherwise of witnesses. Though not directly applicable, The Indian Evidence Act under Sections 135 to 166 covers this topic.

This part of the Act (also its last part) deals with the Examination of witness and covers -

the manner in which a witness is to be examined by the party who calls him,

What kind of question can be put to him? and
What kind of questions cannot be put to him? and
How the opposite party can test the veracity of deposition? and
How his creditworthiness be impeached?
While the technicalities of the Act need not be brought in an inquiry conducted departmentally, those parallel provisions, which are relevant and appealing to the commonsense of the Inquiry Officer may be used as guidance material.

Relevant Provisions of The Indian Evidence Act,1872-
Questions lawful in Cross-examination

Witness to character can be cross-examined and re-examined(Sec.140)

Leading Questions may be asked in cross-examination(Sec.143)
A witness may be cross-examined as to previous statements made by him in writing and relevant to matters in question(sec.145)
Other Lawful Questions-
Questions to test the veracity of the witness

to discover who he is and what his position in life, or
to shake his credit, by injuring his character
Questions, which are not to be Asked in Cross-Examination

Questions not be asked without reasonable grounds. In other words one cannot embark on a 'fishing expedition'(Sec.149)

Indecent and Scandalous questions cannot be asked (Sec.151)
Questions intended to insult or annoy, or questions needlessly offensive in form cannot be asked(Sec.152)
Refreshing Memory (Sec.159 & 169)

While under examination, a witness may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. The writing could also relate to those made soon after the transaction. When the original of such document is not produced, but a copy has been produced, the witness may refresh his memory by referring to the copy.

Perverse Evidence of Interested Witness

A witness is to speak the truth. This is binding on him as per law, as per conduct rules and on principles of decent morality of a good citizen. But what if a particular witness, develops specific interest for or against the charged officer and give perverse evidence? Perverse evidence refers to statements made by a witness, which are not true, but false. Additionally while making such statements the witness is clearly aware that what he speaks is not true. Civil/Criminal courts term it as 'perjury', if proved subsequently and inflict 'punishment' on the witness. Such evidence affects at the root of the sanctity of departmental inquiries and results in miscarriage of justice. But how to deal with this situation, as the witness is adequately coached and well prepared to meet intense cross-examination.

The following steps may be adhered to in such a situation:

Start with intense cross-examination of the witness asking for supplementary details of even minute character to test his demeanor

Try to bring out through cross-examination, if possible, that, he is an interested witness, to discredit veracity of his testimony.
Even if these are not effective, suggest the correct facts to the witness, and ask for his affirmation or negation - (e.g.) "I say these developments took place and not the one you have stated. Now what have you to say to this". Even if the witness sticks to his original statements, it is disputed on record that the veracity of the witness is the subject matter of consideration on account of this step. It also amount to the particular statement/testimony of the witness has been contested by the other party and has not been accepted by default or failure of cross-examination.
Try to spot suitable witness for your side (Management or defence), who will explain the correct facts in his testimony. This will counteract to the testimony of the perverse witness
At any point if it is established that at least a part of the testimony of the perverse witness as false, propose to the IO to recall that witness for further cross-examination on these points. Obviously this is equally the duty for the Inquiry Officer to do even at his own initiative.
If the perverse witness is on behalf of the management, the charged officer should normally avail his privilege to appear as his own witness and testify the correct facts in his evidence. The PO can cross examine him. No amount of cross-examination can alter the truth or the stand of a genuine witness.
The moral is that a statement made by the other party at any stage of the inquiry, if it is not acceptable to you, must be contested, even if you are not able to immediately disprove the same categorically on record. Otherwise it will amount on account of your default that you have impliedly accepted the same and it will weigh against you in the inquiry. This is the Law of Default and it applies to both the PO and the CO.