When a witness is not cross-examined on a certain point, can the said point be used in evidence in final arguments in a criminal trial? – by Poornika Kumari

By | June 6, 2018

When a witness is not cross-examined on a certain point, can the said point be used in evidence in final arguments in a criminal trial?

  1. From the bare reading of Section 137 of the Indian Evidence Act,1872 (hereinafter referred to as Act), the examination of the witness by the adverse party shall be called his cross-examination. According to Section 145 of the Act, a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, 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.
  1. There are certain statements which are made in writing previously and in the course of proceedings of cross-examination u/s 145 of the Act, present statements of the witness may be contradicted by the previous statement to show that he is not telling the truth. Moreover, a previous statement used under this section to contradict a witness is not to be used as substantive evidence in the case of the fact contained therein. The only purpose to contradict with the previous statement is to prove that the statement made in the court is not reliable.[1] Section 145 of the Act lays down that if the previous contradictory statement of a witness is intended to be proved, his attention must be called to it. The object of this procedure is to give the witness a chance of explaining or reconciling his statements before the contradiction can be used as evidence.[2] If the opportunity to explain is not given, the contradictory writing cannot be placed on the record as evidence.[3]
  1. Supposedly if a substantive issue has not been touched upon by the opposing counsel during cross-examination, then that issue cannot be contradicted or raised at a later stage. It is implied to be proved or admitted if not questioned during the stage of cross-examination. For instance, in a complaint under Section 138 of Negotiable Instruments Act, 1881 (NI Act) for the dishonor of cheque during the cross-examination of the complainant, the Counsel must ask questions regarding:
  2. the existence of legal liability in favor of the complainant;
  3. the reason for which the cheque was issued;
  • whether the liability was discharged etc.

If such questions, being relevant are not asked during cross-examination, the complainant shall get the benefit out of it and such issues cannot be raised or questioned at a later stage as doubtful one. So, if a person states something as a fact in the affidavit or otherwise, the other side can cross-examine him to disprove that point. If no cross has been done on a particular point, it would stand proved.

  1. The general principle lays down that if a witness is under cross-examination on oath, and the documents given by him are to be used against him, then he should be given an opportunity to explain his statement and also to clarify the vagueness and ambiguity or contradiction occurring in his statement. This is a general, salutary, and intelligible rule, and where a witness’s reputation and character are at stake, the duty of enforcing this rule would appear to be singularly clear.[4]
  2. However, there is an exception to the above-stated principle which is given under section 58 of the Act which states that facts admitted need not be proved. The underlying principle lays down that if the parties to a proceeding or their agents agree to admit a fact at the hearing, or which they agree to admit by writing before the hearing, or which by any rule of pleading in force they are deemed to have been admitted by their pleadings, it need not be proved by the opposite party. However, the exception to Section 58 of the Act states that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. Judicial notice of fact that many blind persons have acquired great academic distinctions, can be taken by Court.[5]
  3. Overall, it is concluded that if a witness is not cross-examined on a certain point, it is considered as admitted. If the opposing counsel has failed to contradict the previous statement of the witness during cross-examination, then he cannot raise doubt on the veracity of the witness statement at a later stage. Such unquestioned points would stand admitted by both the parties. However, there are certain points or documents which prima facie stands proved and admitted such as judicial notice, or any gazette notification or any judicial order etc, and so there is no requirement to cross-examine on such points and documents.

– Poornika Kumari

(Faculty of Law, Delhi University)


Footnotes:

[1] Brij Bhushan Singh vs. Emperor, AIR 1945 PC 38

[2] Madar Siredar vs. Emperor, AIR 1927 Cal. 514

[3] Tara Singh vs. State, AIR 1951 SC 44; Bire Singh Vs. State, AIR 1953 All. 785; Doman vs. Suraj Dev Prasad, AIR 1970 Pat. 95

[4] Bal Gangadhar Tilak vs Shri Shriniwas Pandit, (1915) 17 BOMLR 527

[5] Jai Shankar Prasad vs. State of Bihar, AIR 1993 Pat 22


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