EVIDENCE ACT & THE ART OF CROSS EXAMINATION

PRESENTED BY:
MR. HARESH JAGTIANI
SENIOR ADVOCATE
hmj@oasisadvisory.com
(ASSISTED BY THE ENTIRE OASIS COUNSEL & ADVISORY TEAM)

DATE: 25 APRIL 2020

A. INTRODUCTION
1. The lure of joining the legal profession is often prompted by the romance of
cross examination by which the consummate lawyer heroically wins his case
by vanquishing his opponent in the witness box.

2. Whilst this may not always be replicated in a real court room drama, what
cannot be underestimated is the power of cross examination and cross
examination as a weapon which when properly wielded by a competent cross
examiner can get astounding results.

3. In order to reach a level of proficiency by which the tool of cross examination

is effective, an enormous amount of discipline is required. In short, eliciting
the truth from a witness who may otherwise be inclined to be shifty or
unforthcoming is not a fluke.

4. If a lawyer begins his cross examination in the hope that he will get lucky he
is labouring under a delusion. He would find himself much better off taking
a chance at winning the lottery than he would if all that he is basing his cross
examination on is the good fortune of getting a favourable answer from a
witness.

B. EVIDENCE ACT, 1872

1. The purport and rationale of the Evidence Act is in its tenth chapter that deals
with trials and courts.

2. Sections 137 and 138 deal with the procedure relating to examination in chief,
cross examination and re-examination. But large parts, if not the entire
Evidence Act contains substantive provisions, all aimed at enabling the Court
to arrive at the “truth of the matter”.

3. The purport of examination and cross examination is to introduce evidence in

a trial from which the Judge will ascertain which of the parties to the litigation
is speaking the truth and who is not.
 4. The truth which is brought forth by evidence is processed through the
provisions of the Evidence Act and is as it were “the processed truth”. The
evidence that a Court receives must pass muster vis a vis the provisions of the
Evidence Act and if it does not, it is not recognised as evidence and is
inadmissible.

5. If inadmissible, no part of the judgment or award given by that forum can be

based upon the same.

C. AIMS OF CROSS EXAMINATION1

In greater detail the aims of cross examination are these :
1. To destroy the material parts of evidence - in – chief.

2. To weaken the evidence, where it cannot be destroyed.

3. To elicit new evidence, helpful to the party cross examining, and

4. To undermine the witness (or shake his credit, as it is commonly expressed)

by showing that he cannot be trusted to speak the truth, or that he is deposing
(however honestly) to matters of which he has no real knowledge. To destroy
adverse evidence outright is usually too much to hope for, except in rare case
such as the Oscar Wilde trial, or in the cross examination of a prisoner who
has put forward an improbable story. The ideal to be aimed at it is to lead the
witness to admit that his evidence was untruthful or mistaken.

D. RELEVANT PROVISIONS OF THE EVIDENCE ACT

1. The Evidence Act has 11 chapters or segments, each of which contain
provisions which determine whether the testimony of witnesses or documents
introduced at the hearing are to be treated as evidence or not.

2. Broadly speaking the first segment deals with the interpretation of words and
phrases in which some important definitions relevant for this discussion are
“fact” and “proved”. Fact is defined as “Fact means and includes -

1
Sir John Woodroffe and Syed Amir Ali, Law of Evidence, Vol. 2 (ML Singhal ed.)
 (1) any thing, state of things or relation of things, capable of being perceived
by the senses;

(2) Any mental condition of which any person is conscious.”

3. A fact is said to be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon
the supposition that it exists.

4. What is worth noting is that the Evidence Act imports the concept of a prudent
man in accepting that a fact is proved and therefore the Evidence Act is not
looking at a standard of perfection that may or may not be achievable. The
Supreme Court has in various judgments held that perfect proof is impossible
in an imperfect world.

5. Chapter 2 deals with relevancy of facts and these are contained in Sections 5
to 55. This is a crucial segment of the Evidence Act, for, any evidence in order
to be admissible and constitute the basis of a judgment or award must be
relevant. Irrelevant facts are not evidence.

6. Chapter 3 of the Evidence Act deals with facts which need not be proved as
for instance those facts of which judicial notice will be taken and those facts
which by law are deemed to be admitted having regard mainly to law of
pleadings. These are contained in Sections 56 to 58 of the Act.

7. Chapter 4 deals with oral evidence and is quite plainly the meat of the matter
when it comes to cross examination. Sections 59 and 60 enjoin a party to bring
forth the best evidence and the one that is direct. Any other evidence is treated
as hearsay.

8. Chapter 5 which covers Sections 61 to 90A deals with documentary evidence

as distinguished from oral evidence and the requirements that render such
documentary evidence as admissible.

9. Chapter 6 that covers Sections 91 to 100 deals with the exclusion of oral by
documentary evidence. These set of sections are important for a cross
examiner to keep in mind for if the mandate of these provisions is violated
the oral evidence sought to be introduced will not be admissible. For instance,
Section 91 and 92 contemplate that when a document is required by law to be
reduced to writing is so brought into existence, oral evidence may not be
given to vary, modify or contradict the terms of such a document.
10. Chapter 7 deals with the burden of proof in Sections 101 to 114A. Perhaps no
lawyer embarking upon the mission of cross examination can be unmindful
of the principles relating to burden of proof. These provisions will be dealt
with at some length herein below.

11. Chapter 8 that covers Sections 115 to 117 deals with the provision founded
in equity mainly estoppel where a party is not entitled to renege on a promise
or stand taken by him when the person to whom such promise has been made
has acted on it and altered his position to his disadvantage or detriment.

12. Chapters 9 and 10 deals with witnesses (Sections 118 to 134) and examination
of witnesses (Sections 135 to 166) and is largely procedural and obviously
indispensable to the introduction of evidence through examination and cross
examination. Of utmost importance to a cross examiner especially for the
purpose of contradicting a witness under his cross is Section 145 of the
Evidence Act which has to be read with Section 162 of the Criminal
Procedure Code. This too will be discussed in some greater detail herein
below.

13. And lastly Chapter 11 deals with improper admissions and rejection of
evidence and has only one section i.e. Section 167 which is in the nature of a
Savings Clause that prevents a trial from being vitiated merely because
inadmissible evidence has been brought on record or admissible evidence has
been rejected.

E. THE CONCEPT OF “BURDEN OF PROOF”

1. In every trial the paramount question is who bears the burden of proving a
particular fact. Broadly speaking all civilised jurisprudence recognise three
broad types of burden and they may be classified as follows:

(i) The burden that rests upon the prosecution in a criminal trial to prove its
case against the accused and this burden is the heaviest type namely that
the prosecution must prove its case beyond reasonable doubt, the
operative word is “reasonable” which is not the same as “beyond any
shadow of doubt.”

(ii) A lesser burden than this is as subsists in civil trials where a Plaintiff or a
Defendant wishing to obtain a favourable judgment must prove his case
on a preponderance of probabilities. In short, after the evidence is
 introduced at a trial the Court on weighing the evidence must decide in
whose favour the scales tilt.

(iii) The third type of burden is actually the converse of the first burden and
this is a burden that rests upon an accused in a criminal trial to merely
probabilize his case. This means that he is entitled to so interpret the
evidence brought on record in a manner that is either consistent with his
innocence or which may be demonstrated to casting a doubt on the
evidence introduced by the prosecution. In such a case the accused is
entitled to “the benefit of doubt”.

2. It is within the interplay of these three types of burdens that all civil and
criminal litigations are broadly resolved. There are however statutory
modifications or exceptions to the type of burden that rests upon a party to
the litigation and these are found in Sections 105 and 106 of the Evidence
Act.

3. Section 105 reads as follows : “Burden of proving that case of accused

comes within exceptions – When a person is accused of any offence, the
burden of proving the existence of circumstances bringing the case within
any of the general exceptions in the Indian Penal Code (45 of 1860), or
within any special exception or proviso contained in any other part of the
same Code, or in any law defining the offence, is upon him, and the Court
shall presume the absence of such circumstances.”

4. This provision in some way shifts the burden in a criminal trial upon the
accused person that is, whilst admitting the facts that seek to establish his
guilt he claims to avail of an exception under the provisions of the Indian
Penal Code. The exception relied upon by the accused may either mitigate
the offence or entitle him to an acquittal by making an otherwise inculpatory
act into an exculpatory one.

5. For instance, if an accused admits to causing the death of the deceased he

could plead if the charge is one of murder that he acted in grave and sudden
provocation and therefore did not commit the act of murder premeditatedly
or with the mens rea requisite to prove murder. This therefore would enable
the accused to a lesser sentence than the one prescribed for murder. But in
 such a case, the burden of proving that the act of killing was a result of a
grave and sudden provocation is upon the accused.

6. On the other hand, if the accused admits to the killing in the charge of murder
and pleads that he did kill the other but in the exercise of his right of self
defence or private defence, he would be entitled to a complete acquittal. In
this case too, the burden to prove that the act was done in self defence is
upon the accused.

7. The question that arises is that what is the extent of the burden to be
discharged by an accused who claims the benefit of an exception; does he
have to prove his case to the same extent as the prosecution namely beyond
reasonable doubt or does he merely have to show that on a preponderance
of probability it could be said that the exception pleaded by him stands
established.

8. Gauhati High Court in the case of Ghana Gogoi vs. State of Assam2 has held
that an accused pleading an exception under IPC is merely expected to prove
his case on a preponderance of probability and may also be able to get away
by probabilizing his case if on a cumulative reading of his evidence it is
demonstrated that the prosecution has failed to prove all the ingredients of
the offence. The relevant portion of the judgment is culled out herein below
:

“88. If the standard, as attributable to the word disproved, is required to be

applied in the case of the defence, then, the standard of burden of proof,
placed on the accused, would be as rigorous as on the prosecution, which,
again, is not an accepted position of law.

89. Resultantly, therefore, when an accused succeeds in probablising his

defence, he is entitled to acquittal. However, even if the accused fails to
prove the plea of a General Exception by preponderance of probabilities, he
would, nonetheless, be entitled to acquittal under benefit of doubt if he
succeeds in creating a reasonable doubt, in the mind of the court, as to the
existence of the ingredients of offence, which the prosecution is required to
prove.

2
(2013)5GauLR 612
 90. Thus, an accused, when succeeds in proving his plea of a General
Exception by preponderance of probabilities, he is entitled to claim
acquittal. If he, however, does not succeed in establishing his plea by
preponderance of probabilities, but he succeeds nonetheless in creating a
reasonable doubt in the mind of the court as regards existence of the
ingredients, which, in a given case, are required to be proved by the
prosecution, the accused would be still entitled to acquittal under benefit of
doubt.”

9. The other exception to the general principles of burden of proof is contained

in Section 106 of the Act which reads “Burden of proving fact especially
within knowledge – When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him”.

10.The Supreme Court in the case of Shambu Nath Mehra v. State of Ajmer3
has elaborated the scope of Section 106 in the following words :

“9… the general rule that in a criminal case the burden of proof is on the
prosecution and section 106 is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate disproportionately difficult, for
the prosecution to establish facts which are ‘especially’ within the
knowledge of the accused and which he could prove without difficulty or
inconvenience. The word ‘especially’ stresses that. It means facts that are
pre-eminently or exceptionally within his knowledge. If the section were to
be interpreted otherwise, it would lead to the very startling conclusion that
in a murder case the burden lies on the accused to prove that he did not
commit the murder because who could know better than he whether he did
or did not. It is evident that cannot be the intention and the Privy Council
has twice refused to construe this section, as reproduced in certain other
Acts outside India, to mean that the burden lies on an accused person to
show that he did not commit the crime for which he is tried. These cases
are Attygalle v. Emperor and Seneviratne v. R.”

3
AIR 1956 SC 404
11. Another judgment wherein the Supreme Court has elaborated the scope of
section 106 is State of Rajasthan v. Kashi Ram4 wherein the Supreme Court
has held : “It is not necessary to multiply with authorities. The principle is
well settled. The provisions of Section 106 of the Evidence Act itself are
unambiguous and categoric in laying down that when any fact is especially
within the knowledge of a person, the burden of proving that fact is upon him.
Thus, if a person is last seen with the deceased, he must offer an explanation
as to how and when he parted company. He must furnish an explanation
which appears to the Court to be probable and satisfactory. If he does so he
must be held to have discharged his burden. If he fails to offer an explanation
on the basis of facts within his special knowledge, he fails to discharge the
burden cast upon him by Section 106 of the Evidence Act. In a case resting
on circumstantial evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him, that itself provides an
additional link in the chain of circumstances proved against him. Section
106 does not shift the burden of proof in a criminal trial, which is always
upon the prosecution. It lays down the rule that when the accused does not
throw any light upon facts which are specially within his knowledge and
which could not support any theory or hypothesis compatiable with his
innocence, the Court can consider his failure to adduce any explanation, as
an additional link which completes the chain. The principle has been
succinctly stated in Re. Naina Mohd.”

12. Briefly stated Section 106 will rarely be pressed into service in criminal trials
and is more germane to civil cases. However, there may be instances when if
a particular fact in issue, which is not an essential ingredient of that offence,
resides especially within the knowledge of an accused then in that case
Section 106 may be pressed into issue and then that burden of proving that
fact will rest upon the accused.

13. Section 106 does not permit the prosecution to pass on the burden of proving
the essential ingredients of an offence such as mens rea, knowledge, intention,
wrongful loss or wrongful gain etc. to an accused person. If an offence is to
be proved every single ingredient thereof must necessarily be proved beyond
reasonable doubt by the prosecution.

4
(2006) 12 SCC 254
14. A statute which renders a wrongdoer liable under it may itself prescribe the
nature and extent of the burden cast upon a person charged with an offence
under that law. In such a case, the general principles of burden of proof as
contained in the Evidence Act are replaced by the special provisions of those
statutes.

15. For instance Section 278 of the Income Tax Act, 1961 states where the state
of mind or mens rea is required to be proved in establishing an offence such
as concealment under the Income Tax Act, 1961 then the burden of showing
that the accused acted without mens rea is upon such person and the same
must be discharged to the same extent as a burden which rests upon a
prosecution in such matters. In other words, this is an exception to the
jurisprudential principles of the presumption of innocence which requires a
prosecution to prove the guilt of an accused and not for the accused to prove
his innocence. Such provisions are also found in economic legislations such
as the Customs Act, 1962, the Prevention of Money Laundering Act, 2002 to
name a few.

F. HEARSAY EVIDENCE
1. Generally, a Court will not receive evidence which is in the nature of hearsay.
Although hearsay has by judicial pronouncements acquired a fairly well-
defined meaning nonetheless it is a word which may lead to ambiguity or
uncertainty in some situations. Hearsay is substituted by the phrase that
evidence must be direct as is indicated in Sections 59 and 60.

2. Hearsay is defined as ‘the evidence of not what witness knows himself but of
what he has heard from others.’5 It may be noted that a testimony based on
the hearsay evidence is not admissible in evidence. For example, A report in
a newspaper is a hearsay evidence.

3. Hearsay is always inadmissible as substantive evidence whether that evidence

be elicited in examination or cross-examination. But hearsay may be
admissible in cross-examination in so far as it touches the question of the
credibility of the witness examined.

5
Sir John Woodroffe and Syed Amir Ali, Law of Evidence, Vol. 2 (ML Singhal ed.)
 4. The Bombay High Court in the matter of D. and Ors.6 has explained the
nature of hearsay evidence and further expounded the rationale behind the
inadmissibility of the hearsay evidence in the following words :
“9. The reason on which the decision of Bhagwati J. is based is not far to
seek. The evidence of the contents contained in the document is hearsay
evidence unless the writer thereof is examined before the Court. We,
therefore, hold that to attempt to prove the contents of the document by
proving the signature or the handwriting of the author thereof is to set at
naught the well recognised rule that hearsay evidence cannot be admitted.
This question has been discussed by Halsbury at para. 533, at p. 294
(Halsbury's Laws of England, 3rd edn., Vol. 15) under the heading
'Hearsay'. Says Halsbury: ...Statements in documents may also be hearsay.
So, if A had taken counsel's opinion before acting, the contents of the opinion
would be admissible for the same purpose, but not to prove the truth of any
statement of fact therein. In para. 534 Halsbury has discussed the reasons
for rejection of hearsay evidence and says (p. 295 ): The reasons advanced
for the rejection of hearsay are numerous, among them being the
irresponsibility of the original declarant, the depreciation of truth in the
process of repetition, the opportunities for fraud which its admission would
offer, and the waste of time involved in listening to idle rumor. The two
principal objections, however, appear to be the lack of an oath administered
to the originator of the statement, and the absence of opportunity to cross-
examine him.”

5. The Allahabad High Court in the case of Radha Sharan Dubey vs. Ram
Niwas7, whilst explaining the conspectus of section 60 and the hearsay
evidence has observed as under :
“122. The principle underlying the said judgment of Apex Court is based on
the rule of evidence under Section 60 of the Indian Evidence Act which
contemplates that the oral evidence must be direct. The word 'direct' in the
section is used as opposed to mediate or derivative or what can be said to be
hearsay evidence i.e. when a person who has seen or heard, a thing reports
directly to the court in pursuance of his knowledge by such observation. On
the other hand, transmitted second hand or hearsay evidence is something
6
1967 MhLJ 65
7
2017(3)ADJ769
 which a witness before the court says that he heard from the third party who
has not been called as a witness, the statement of that witness then becomes
inadmissible in evidence in proof of the fact so stated. The term 'hearsay' is
rather ambiguous and misleading and it has, therefore, been purposely
excluded from the Indian Evidence Act. However, what is commonly known
as "hearsay" is secondary evidence of any oral statement given orally. The
reason for rejection of such evidence are numerous but the cardinal rule is
that the best evidence shall always be given. It is in the light of the said
principle, the Apex Court found in the above noted case that the Power of
Attorney could not depose.”

6. However, there are statutory exceptions to the rule against hearsay and these
are found in Sections 8, 32 and 33 of the Evidence Act. Generally, these
Sections apply to a situation where conduct of a party is at issue in a trial. If
hearsay evidence is brought on record to explain as to why a party to a
litigation behaved or conducted himself in a particular way, then that evidence
to that limited extent is admissible. But the hearsay evidence is not admissible
to prove the contents thereof.

7. For instance, if the point at issue is that a person in breach of his promise to
appear at a function in Kolkata justifies the breach by saying that he received
a call from a friend in Kolkata saying that it is unsafe to come to the city
because riots have broken out there. This statement that riots have broken out
in Kolkata without examining the person who made it is strictly speaking
hearsay evidence. But nonetheless that statement is admissible in evidence
only to the extent of explaining why that person broke his engagement to
appear in Kolkata. That statement is not admissible to prove the fact of riots
in Kolkata.

8. Sections 32 and 33 deal with situations where the person making a statement
or with knowledge of an event is unavailable to testify either because such
person is dead or becomes incapable of giving evidence for reasons stated in
those sections. In such case particularly in dealing with dying declarations,
hearsay evidence if proved is admissible and may be relied upon to bring
home a charge.
 9. In this regard, it would be relevant to refer to one of the authorities of the
Supreme Court being Muthu Kutty and another v. State of T.N.8. The Hon’ble
Supreme Court in this case has held that conviction can be accorded solely on
the basis of dying declaration, if it is worth and reliable and there is no
infirmity in it reinforcing the maxim “Nemo Moriturus praesumitur”, which
means that a person will not meet his maker with a lie in his mouth. The
relevant portion is as follows:

“13.At this Juncture, it is relevant to take note of Section 32 of the Indian

Evidence Act, 1872 (in short '’Evidence Act') which deals with cases in which
statement of relevant fact by person who is dead or cannot be found, etc. is
relevant. The general rule is that all oral evidence must be direct viz. if it
refers to a fact which could be seen it must be the evidence of the witness
who says he saw it, if it refers to a fact which" could be heard, it must be the
evidence of the witness who says he heard it, if it refers to a fact which could
be perceived by any other sense, it must be the evidence of the witness who
says he perceived it by that sense. Similar is the case with opinion. These
aspects are elaborated in Section 60 The eight clauses of Section 32 are
exceptions to the general rule against hearsay just stated. Clause (1)
of Section 32 makes relevant what is generally described as dying
declaration, though such an expression has not been used in any Statute. It
essentially means statements made by a person as to the cause of his death
or as to the circumstances of the transaction resulting in his death. The
grounds of admission are : firstly, necessity for the victim being generally
the only principal eye-witness to the crime, the exclusion of the statement
might deflect the ends of justice; and secondly, the sense of impending death,
which creates a sanction equal to the obligation of an oath. The general
principle on which this species of evidence is admitted is that they are
declarations made extremity, when the party is at the point of death and when
every hope of this world is gone, when every motive to falsehood is silenced,
and the mind is induced by the most powerful considerations to speak the
truth; a situation so solemn and so lawful is considered by the law as
creating an obligation equal to that which is imposed by a positive oath
administered in a Court of "Justice. These aspects have been eloquently
stated by Lyre LCR in R. v. Wood Cock, [1789] 1 Leach 500. Shakespeare

8
(2005) 9 SCC 113
 makes the wounded Melun, finding himself disbelieved while announcing the
intended treachery of the Dauphin Lewis explain :

"Have I met hideous death within my view,

Retaining but a quantity of life, Which bleeds
away even as a form of wax, Resolveth from his
figure 'gainst the fire? What is the world should
make me now deceive, Since I must lose the use of
all deceit? Why should I then be false since it is
true That I must die here and live hence by truth?"

(See King John, Act 5, Sect. 4)

The principle on which dying declaration is admitted in evidence is indicated

in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet
his maker with a lie in his mouth."

14.This is a case where the basis of conviction of the accused is the dying
declaration. The situation in which a person is on deathbed is so solemn and
serene when he is dying that the grave position in which he is placed, is the
reason in law to accept veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Besides,
should the dying declaration be excluded it will result in miscarriage of
justice because the victim being generally the only eye- witness in a serious
crime, the exclusion of the statement would leave the Court without a scrap
of evidence.

G. ADMISSIONS & CONFESSIONS

1. A cross examiner must necessarily bear in mind the provisions relating to
admissions and confessions contained in Sections 17 to 31 of the Act. These
sections constitute a part of the relevancy provisions. The importance of this
is that in the process of cross examination of a witness, a party to the litigation,
whether civil or criminal, need not cross examine a witness if certain facts are
established by these provisions. In addition, Section 58 is also of great
importance which deals with when facts may be treated as proved. An astute
cross examiner would tread very carefully before questioning a witness on
admitted facts especially when he is able to advance the cause of his client on
 that material. Some interesting judgments dealing with admissions and
confessions are quoted herein below.

2. The Supreme Court in the case of State of Maharashtra vs. Kamal Ali Ahmed
Mohammed Vakil Ansari9 has observed the following :

“15. Admissions and confessions are exceptions to the "hearsay" rule. The
Evidence Act places them in the province of relevance, presumably on the
ground, that they being declarations against the interest of the person
making them, they are in all probability true. The probative value of an
admission or a confession does not depend upon its communication to
another. Just like any other piece of evidence, admissions/confessions can
be admitted in evidence only for drawing an inference of truth (See Law of
Evidence, by M. Monir, fifteenth edition, Universal Law Publishing
Company). There is, therefore, no dispute whatsoever in our mind, that truth
of an admission or a confession cannot be evidenced, through the person to
whom such admission/confession was made. The position, however, may be
different if admissibility is sought under Sections 6 to 16 as a "fact in issue"
or as a "relevant fact" (which is the second question which we are called
upon to deal with). The second question in the present case, we may clarify,
would arise only if we answer the first question in the negative. For only
then, we will have to determine whether these confessional statements are
admissible in evidence, otherwise than, as admissions/confessions.

18. An examination of the provisions of the Evidence Act would reveal, that
only such admissions/confessions are admissible as can be stated to have
been made without any coercion, threat or promise. Reference in this regard
may be made to Section 24 of the Evidence Act which provides, that a
confession made by an accused person is irrelevant in a criminal
proceeding, if such confession has been caused by inducement, threat or
promise. Section 24 aforesaid, is being reproduced below:

24. Confession by inducement, threat or promise when irrelevant in criminal

proceeding -

9
AIR2013SC1441
A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have
been caused by any inducement, threat or promise, having reference to the
charge against the accused person, proceeding from a person in authority
and sufficient, in the opinion of the Court, to give the accused person
grounds, which would appear to him reasonable, for supposing that by
making it he would gain any advantage or avoid any evil of a temporal
nature in reference to the proceeding against him.

Sections 25 and 26 of the Evidence Act exclude, from the realm of

admissibility, confessions made before a police officer or while in police
custody. There can be no doubt, that the logic contained in the rule
enunciated in Sections 25 and 26 is founded on the same basis/truth out of
which Section 24 of the Evidence Act emerges. That a confession should be
uninfluenced, voluntary and fair. and since it may not be possible to
presume, that admissions/confessions are uninfluenced, voluntary and fair,
i.e., without coercion, threat or promise, if made to a police officer, or while
in police custody, the same are rendered inadmissible. Sections 25 and 26
aforesaid, are being reproduced below:

25. Confession to police officer not to be proved-

No confession made to police officer shall be proved as against a person

accused of any offence.
26. Confession by accused while in custody of police not to be proved
against him-

No confession made by any person whilst he is in the custody of a police-

officer, unless it be made in the immediate presence of a Magistrate, shall
be proved as against such person.

Explanation -- In this section "Magistrate" does not include the head of a

village discharging magisterial functions in the Presidency of Fort St.
George or elsewhere, unless such headman is a Magistrate exercising the
powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of
1882).
 There is, therefore, a common thread in the scheme of admissibility of
admissions/confessions under the Evidence Act, namely, that the
admission/confession is admissible only as against the person who had made
such admission/confession. Naturally, it would be inappropriate to
implicate a person on the basis of a statement made by another. Therefore,
the next logical conclusion, that the person who has made the
admission/confession (or at whose behest, or on whose behalf it is made),
should be a party to the proceeding because that is the only way a confession
can be used against him…”

3. Further, section 58 also encompasses the principle of admissions in the

following terms :
“Section 58 – Facts admitted need not be proved – No fact need to be proved
in any proceeding which the parties thereto or their agents agree to admit
at the hearing, or which, before the hearing, they agree to admit by any
writing under their hands, or which by any rule of the pleading in force at
the time they are deemed to have admitted by their pleadings :
Provided that the Court may, in its discretion, require the facts admitted to
be proved otherwise than by such admissions.”

4. Whilst explaining the scope of section 59, Sir John Woodroffe and Syed Amir
Ali in their book on Law of Evidence10 have stated as under :
“Proviso. The function of admissions made in the pleadings is to limit the
issues and therewith the scope of evidence admissible11. Where, in a suit for
specific performance of an agreement, the Defendant admitted in his written
statement the terms of the agreement and its execution, the Court held that
the Plaintiff was not called upon to prove the execution of the agreement or
to put in it evidence, and citing the case of MC Gown v. Smith12 and Cresley
on Evidence13 remarked as follows :
“A Court, in general, has to try the question on which the parties are to
issue, not those on which they are agreed; and ‘admissions which have
been deliberately made for the purpose of suit whether in the pleadings or

10
Vol. 2 (ML Singhal ed.)
11
Wills, Ev., 101; Ib, 3rd Ed., 154
12
26 L.J.Ch.8.
13
Law of Evidence, 457
 by agreement, will act as an estoppel to the admission of any evidence
contradicting them…”

5. The Supreme Court, explaining the relevance of admissions, has held in the
case of Nagindas Ramdas vs. Dalpatram Ichharam & Ors.14 as follows :

“27. From a conspectus of the cases cited at the bar, the principle that
emerges is, that if at the time of the passing of the decree, there was some
material before the Court, on the basis of which, the Court could be prima
facie satisfied, about the existence of a statutory ground for eviction, it will
be presumed that the Court was so satisfied and the decree for eviction,
though apparently passed on the basis of a compromise, would be valid. Such
material may take the shape either of evidence recorded or produced in the
case, or, it may partly or wholly be in the shape of an express or implied
admission made in the compromise agreement, itself. Admissions, if true and
clear, are by far the best proof of the facts admitted. Admissions in pleadings
or judicial admissions, admissible under Section 58 of the Evidence Act, made
by the parties or their agents at or before the hearing of the case, stand on a
higher footing than evidentiary admissions. The former class of admissions
are fully binding on the party that makes them and constitute a waiver of
proof. They by themselves can be made the foundation of the rights of the
parties On the other hand, evidentiary admissions which are receivable at the
trial as evidence, are by themselves, not conclusive. They can be shown to be
wrong (emphasis supplied).”

6. Whilst elaborating the relevance of admissions in cross examination, the

Supreme Court in the case of Gannmani Anasuya and Ors vs. Parvatini
Amarendra Chowdhary and Ors.15 has held as under :
“22. An admission made by a party can be used against him. When such
admission is made by a Karta of the Hindu undivided family, who is
managing the family property as well as family business affairs, the same
would be a relevant fact. When a claim was made by the plaintiffs for
rendition of accounts in the lis, issuance of a document purported to have

14
AIR 1974 SC 471
15
AIR 2007 SC 2380
 been authored by one of the parties, in our opinion, was required to be taken
into consideration.
23. In terms of Section 58 of the Indian Evidence Act, 1872, a thing admitted
need not be proved. [See Shreedhar Govind Kamerkar v. Yesahwant Govind
Kamerkar and Anr. MANU/SC/0107/2007 : 2006(14)SCALE174] 24. It is
also a trite law that when in cross-examination a witness accepts the
correctness of a document, the same would be relevant. A pleading in regard
to existence of a document may be necessary for advancing the case of a
party, but when a witness admits a document to be in his own handwriting
without anything more, the effect thereof may have to be considered having
regard to the provisions contained in Section 145 of the Indian Evidence Act
in terms whereof the only requirement would be that his attention is drawn
before a writing can be proved. These relevant facts have not been
considered by the High Court (emphasis supplied).”

7. However, pertinent here to note that all admissions may not be of such nature
that would be significant enough to impact a matter. It is important here to
point out that certain admissions may not meet the threshold to be even called
as admissions relying upon which the Court may form an opinion one way or
another. For example, a stray admission made by a party in the
pleadings/cross examination need not necessarily demolish the entire case of
a party. The Supreme Court has succinctly dealt with this issue in the case of
B A Budubhai vs State of Karnataka [Criminal Appeal No. 62 of 2007] in
following words :
“11. Learned Counsel for the appellant has brought to the notice of this
Court a discrepancy in the evidence of PW1. PW1 in his evidence has stated
that the accused fired the gun twice at him from a distance of about 40 feet
from opposite side. A question was posed to PW1 that after the first gunshot
whether the accused refilled the cartridge, PW1 answers that he did not
refill the cartridge. On this aspect of the matter, if the evidence of PW10 - N
G Prabhakar, Ballistic expert who is the Assistant Director, FSL Bangalore
is seen, he states in the cross examination that the cartridge cases in Articles
4 and 5 i.e., empty cartridges are fired through right barrel of DBBL gun in
Article 3. So if in case, both the empty cartridge are from the right barrel of
DBBL gun, then unless after firing one cartridge, it is necessary that another
cartridge will have to be filled in to fire the second. But, PW1 has admitted
in his cross examination that the accused did not refill the cartridge after
 the first gunshot. So relying upon this discrepancy, in the evidence of PWs.1
and 10, it is contended by the learned Counsel that this material discrepancy
and the evidence of PW1 cannot be believed in the context of his admission
in the cross examination.”
The Supreme Court whist dealing with the admission made by the PW1 has
observed as under :
“12……The principle aforesaid in the decision of Apex Court does not apply
to the facts on hand as the evidence of PWs.1 to 3 reveals that two empty
cartridge were recovered from the spot which were seized under mahazar -
Ex.P3. Therefore, the admission of PW1 in the cross examination is
necessarily a stray admission.”
“13…….It is revealed from the evidence of PW1 that he had given stray
admission in the cross examination and such question was not put to PWs.2
and 3 who are also the eye witnesses to explain and in such circumstances,
the admission of PW1 that the accused did not refill the cartridge at the time
of second shot itself is not a ground to discard the version of prosecution.”

H. SECTION 145 – EVIDENCE ACT

1. Section 145 of the Evidence Act deals with the manner in which a witness
may be contradicted and to understand its full import must be read with
Section 162 of the Criminal Procedure Code. The leading case on the point is
Krushna Chandra Pail vs. State16 wherein it has been observed :

“12.…..Section 162 of the Code of Cr. Procedure and Section 145 of the
Evidence Act, are the two provisions of law which have a crucial bearing on
this aspect of the question, viz. the admissibility of the statements made by
the prosecution witnesses before the police as recorded in the case diary.
Having regard to these provisions of law, the procedure prescribed for
contradicting witnesses by their previous statements made during
investigation, has been indicated by the Supreme Court in a decision
reported in Tahasildar Singh v. State of Uttar Pradesh
MANU/SC/0053/1959 : 1959CriLJ1231 where their Lordships said:

The Section (Section 162 Cr.P.C.) was conceived in an attempt to find a

happy via media, namely, while it enacts an absolute bar against the

16
1968CriLJ1192
statement made before a police officer being used for any purpose
whatsoever, it enables the accused to rely upon it for a limited purpose of
contradicting a witness in the manner provided by Section 145 of the
Evidence Act by drawing his attention to parts of the statement intended for
contradiction It cannot be used for corroboration of a prosecution or a
defence witness or even a Court witness. Nor can it be used for contradicting
a defence or a Court witness. Shortly stated, there is a general bar against
its use subject to a limited exception in the interest of the accused, and the
exception cannot obviously be used to cross the bar.

Their Lordships further said in another part of the judgment:

The procedure prescribed for contradicting a witness by his previous

statement made during investigation is that if it is intended to contradict him
by the writing, his attention must before the writing can be proved, be called
to those parts of it which are to be used for the purpose of contradicting him.
The proviso to Section 162 only enables the accused to make use of such
statement to contradict a witness in the manner provided by Section 145 of
the Evidence Act. It would be doing violence to the language of the proviso
if the said statement be allowed to be used for the purpose of cross-
examination of a witness within the meaning of the first part of Section 145
of the Evidence Act. The argument that it would not be possible to invoke
the second part of Section 145 of the Evidence Act, without putting relevant
questions under the first part thereof, cannot be accepted. The second part
of Section 145 of the Evidence Act clearly indicates the simple procedure to
be followed. To illustrate; A says in the witness-box that B stabbed C; before
the police he had stated that D stabbed C. His attention can be drawn to that
part of the statement made before the police which contradicts his statement
in the witness-box. If he admits his previous statement, no further proof is
necessary; if he does not admit, the practice generally followed is to admit
it subject to proof by the police officer. This procedure, therefore
contravenes the express provision of Section 162 of the Code. The second
fallacy is that there is no self-contradiction of the primary statement made
in the witness-box, for the witness has yet not made on the stand any
assertion at all which can serve as the basis. The contradiction, under the
Section, should be between what a witness asserted in the witness-box and
what he stated before the police-officer, and not between what he said he
 had stated before the police and what he actually made before him. In such
a case the question could not be put at all: only questions to contradict can
be put and the question here posed does not contradict; it leads to an answer
which is contradicted by the police statement.
The proper method of contradicting witnesses with their statements under
Section 162 has been elaborately set out in a decision reported in Ramlal
Singh v. State MANU/MP/0146/1958 : AIR1958MP380.”

I. SECTION 157 & 158 OF EVIDENCE ACT

1. Where a Judge renders his judgment he must necessarily be mindful of the
nature of the evidence before him. A rough and ready classification of
evidence may be that which is substantive and that which is corroborative.
Substantive evidence is that upon which alone a judgement may be
pronounced or to put it more poignantly upon which a conviction may be
based. Corroborative evidence on the other hand is such upon which alone
it may be unsafe to resolve a lis or trial in favour of one of the parties.
Corroborative evidence needs to be supported and bolstered in material
particulars by evidence aliunde. Sections 157 and 158 are necessary to be
borne in mind by a cross examiner and these state as follows:

Section 157 – “Former statements of witness may be proved to corroborate

later testimony as to same fact—In order to corroborate the testimony of a
witness, any former statement made by such witness relating to the same
fact, at or about the time when the fact took place, or before any authority
legally competent to investigate the fact, may be proved.”

Section 158 – “What matters may be proved in connection with proved

statement relevant under section 32 or 33—Whenever any statement,
relevant under section 32 or 33, is proved, all matters may be proved, either
in order to contradict or to corroborate it, or in order to impeach or confirm
the credit of the person by whom it was made, which might have been proved
if that person had been called as a witness and had denied upon cross-
examination of the truth the matter suggested.”

2. Supreme Court in the case of Ram Ratan & Ors. Vs. State of Rajasthan17
explaining the purport and applicability of section 157 has states as under :
17
AIR 1962 SC 424
“9. It is clear that there are only two things which are essential for this section
to apply. The first is that a witness should have given testimony with respect
to some fact. The second is that he should have made a statement earlier with
respect to the same fact at or about the time when the fact took place or before
any authority legally competent to investigate the fact. If these two things are
present, the former statement can be proved to corroborate the testimony of
the witness in court. The former statement may be in writing or may be made
orally to some person at or about the time when the fact took place, if it is
made orally to some person at or about the time when the fact took place, that
person would be competent to depose to the former statement and
corroborate the testimony of the witness in court. There is nothing in section
157 which requires that before the corroborating witness deposes to the
former statement the witness to be corroborated must also say in his testimony
in court that he had made that former statement to the witness who is
corroborating him. It is true that often it does happen that the witness to be
corroborated says that he had made a former statement about the fact to some
person and then that person steps into the witness-box and says that the
witness to be corroborated had made a statement to him about the fact at or
about the time when the fact took place. But in our opinion it is not necessary
in view of the words of section 157 that in order to make corroborating
evidence admissible, the witness to be corroborated must also say in his
evidence that he had made such and such statement to the witness who is to
corroborate him, at or about the time when the fact took place. As we have
said already what section 157 requires is that the witness to be corroborated
must give evidence in court of some fact. If that is done, his testimony in court
relating to that fact can be corroborated under section 157 by any former
statement made by him relating to the same fact, and it is not necessary that
the witness to be corroborated should also say in his statement in court that
he made some statement at or about the time when the fact took place to such
and such person. The words of section 157 are in our opinion clear and
require only two things indicated by us above in order to make the former
statement admissible as corroboration. We are therefore of opinion that the
Sind and Pepsu cases were wrongly decided.”
J. CONCLUSION
1. Sadly, the efficacy of cross examination is sometimes compromised or
denuded particularly in trials of civil cases because of laws’ delays in India.
Looking to the pendency of civil cases, an astronomical figure in courts in
India, a witness under cross- examination in a civil trial can easily dodge an
inconvenient question as to a fact by saying “I don’t remember, this happened
20 years ago.” In such a situation a cross examiner though convinced that the
witness is merely avoiding the question by feigning loss of memory, will
nonetheless find it difficult to shake the credibility of the witness, for it is
acceptable to a judge to believe that a person may have forgotten something
that took place 2 or more decades ago. However, in present times another
forum that is fast gaining currency and provides for an alternate dispute
resolution mechanism is arbitration. In an arbitration a dispute usually comes
up for adjudication in a short while. Where arbitrations involve witness
action, a witness will not have an alibi of a lapse of memory on his part, except
at the cost of his credibility. This therefore provides a lawyer with an edge in
the conduct of arbitral proceedings so as to expose an untruthful defense that
may be taken by the other side.

2. It is this advantage in being able to obtain a favourable award by effectively

cross-examining a witness and exposing him if he is untruthful or
disingenuous. An award which is based on appreciation of evidence has in it
an in-built immunity from challenge to have it set aside under section 34 of
the Arbitration Act. Most courts if not all take the view that they will not
interfere with an award which is decided on an appreciation of evidence. High
Courts do not interfere with issues of fact which have been concluded by an
arbitral forum unless the reasoning of that forum is perverse. This is yet
another reason why a skilled lawyer would be in an advantageous position to
make his point in arbitration proceedings.

3. The tendency of courts before which an arbitral award is challenged is to

uphold the award rather than set it aside, especially where the award can be
sustained as being reasonable. In a recent judgment the Supreme Court18 has
held that an arbitral award will be set aside if the reasoning is unintelligible
however, the Court has also held that if there are documents and evidence to
sustain the award then the tendency the Court will be to rely on those
18
M/s. Dyna Technologies Pvt. Ltd. vs. M/s. Cromton Greaves Ltd. [2020(1) Scale 121]
documents and evidence and uphold the award. This only underscores the
importance of obtaining an award on facts and evidence and the best way to
achieve that is through skillful cross-examination.