The Evidentiary Consequences of Absent or Forgone Cross-Examination in the Indian Legal System
Introduction
Cross-examination stands as a cornerstone of the adversarial system of justice prevalent in India. It is a vital tool for testing the veracity of a witness, the accuracy of their memory, and the basis of their knowledge. The Indian Evidence Act, 1872, provides a structured framework for the examination of witnesses, wherein cross-examination plays a pivotal role in the quest for truth. This article delves into the legal and evidentiary ramifications when a witness is not cross-examined, or when the opportunity for cross-examination is not availed. The analysis draws upon statutory provisions, principally the Indian Evidence Act, 1872, and significant judicial pronouncements from the Supreme Court of India and various High Courts, to elucidate the multifaceted impact of the absence of cross-examination on judicial proceedings.
The Legal Framework and Purpose of Cross-Examination
The order of examination of witnesses in India is statutorily mandated by Section 138 of the Indian Evidence Act, 1872. This section stipulates that a witness shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, and subsequently, if the party calling them so desires, re-examined. The Supreme Court in Sukhwant Singh v. State Of Punjab (1995 SCC 3 367) emphasized that tendering a witness solely for cross-examination without an examination-in-chief contravenes this provision. This procedural mandate has been consistently reiterated by various High Courts (ASHWANI KUMAR SHARMA v. M/S HIMACHAL FABRICS, Himachal Pradesh High Court, 2023; OM PARKASH v. MANOJ KUMAR, Himachal Pradesh High Court, 2024).
The objectives of cross-examination are manifold. As observed by the Madras High Court in Indian Airlines, New Delhi v. W.B Correya (Madras High Court, 1978), its principal aims are to destroy material particulars of the evidence-in-chief, weaken it where it cannot be destroyed, elicit new evidence helpful to the cross-examining party, and undermine the witness's credibility. The Madhya Pradesh High Court in Govind v. State Of M.P. (Madhya Pradesh High Court, 2004) noted that cross-examination "exposes bias, detects falsehood and shows mental and moral condition of the witnesses." It is widely regarded as "the most effective and efficacious test which law has devised for the discovery of truth" (Indian Airlines, New Delhi v. W.B Correya, Madras High Court, 1978). The right to cross-examine is thus intrinsically linked to the constitutional guarantee of a fair trial under Article 21 of the Constitution of India (A.G v. Shiv Kumar Yadav & Ors., 2015 (9) SCALE 649, as cited in VIJAY v. STATE ( GOVT OF NCT OF DELHI), Delhi High Court, 2015).
Consequences of Not Cross-Examining a Witness
The failure to cross-examine a witness on specific aspects of their testimony given in examination-in-chief carries significant legal consequences, primarily leading to a presumption of acceptance of that unchallenged testimony.
Presumption of Acceptance of Unchallenged Testimony
A well-settled legal proposition is that if a party wishes to dispute the correctness of a statement made by a witness, the witness must be given an opportunity to explain their statement by drawing their attention to the part objected to during cross-examination. As held by the Supreme Court in Laxmibai (Dead) Through Lrs. & Anr. v. Bhagwantbuva (Dead) Through Lrs. & Ors. ((2013) 4 SCC 97), cited with approval in Babu Ram v. State of Himachal Pradesh (Himachal Pradesh High Court, 2017) and NIMAI SINGH v. SIMA KUMARI (Jharkhand High Court, 2022), without such cross-examination, it is not possible to impeach the witness's credibility, and "the unchallenged part of his evidence is to be relied upon."
This principle was extensively discussed by the Supreme Court in Muddasani Venkata Narsaiah (Dead) Through Legal Representatives v. Muddasani Sarojana (Supreme Court Of India, 2016). The Court affirmed that "the effect of non-cross-examination is that the statement of witness has not been disputed." It referred to its earlier decision in Bhoju Mandal v. Debnath Bhagat (AIR 1963 SC 1906) and other High Court rulings like Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. (AIR 1958 P&H 440), stating that if no questions are put, the Court would presume that the witness's account has been accepted. The Court in Muddasani Venkata Narsaiah also cited A.E.G Carapiet v. A.Y Derderian (1960 SCC ONLINE CAL 44, Calcutta High Court, 1960), which laid down that a party is obliged to put its case in cross-examination of the opponent's witnesses, this being a rule of "essential justice and not merely technical one." This was reiterated in New India Assurance Co. Ltd., Through Its Divisional Manager v. Nelufer Bi And Others (Bombay High Court, 2022).
In A.E.G Carapiet v. A.Y Derderian (1960 SCC ONLINE CAL 44), the Calcutta High Court, referencing Browne v. Dunn (1893), emphasized the necessity of cross-examining witnesses if their testimony is suggested to be untruthful, underscoring fair play. Similarly, in R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple And Another (2003 SCC 8 752), the Supreme Court noted that facts deposed to by the appellant regarding the maintenance of ledger books, which bore the seal of the Income Tax Department, were not challenged in cross-examination. No questions were asked about the authenticity of the books or the entries. The Court, therefore, found no reason to doubt their veracity.
The Supreme Court in Mohd. Salamatullah And Others v. Government Of Andhra Pradesh (1977 SCC 3 590) observed that the first plaintiff had deposed about an agreed profit margin per gun, and there was "no cross-examination on this point by the State defendant." Although the trial court had reduced the claim, the Supreme Court's observation implies that the absence of cross-examination lent credence to the plaintiff's statement. In Dalip Singh v. Sons Of Pal Singh (1953 AIR SC 364), the Court noted that a witness was not cross-examined regarding delay in filing the FIR, which was a factor in accepting the promptness of the report.
Inability to Impeach Credibility or Introduce Contradictory Version
A direct corollary of the failure to cross-examine is the inability of the opposing party to subsequently impeach the credibility of the witness on those unchallenged aspects or to introduce a contradictory version of facts without having put it to the witness. The principle enshrined in Section 146 of the Indian Evidence Act, 1872, which permits questioning to test veracity, cannot be effectively utilized if the foundational challenge is not laid during cross-examination (Laxmibai (Dead) Through Lrs. & Anr. v. Bhagwantbuva (Dead) Through Lrs. & Ors., as cited in Babu Ram v. State of Himachal Pradesh, Himachal Pradesh High Court, 2017). A party is required to put its own version to the opponent's witness; failure to do so implies acceptance of the witness's account (Muddasani Venkata Narsaiah (Dead) Through Legal Representatives v. Muddasani Sarojana, Supreme Court Of India, 2016).
Specific Scenarios and Judicial Treatment
Tendering Witness Without Examination-in-Chief
The practice of the prosecution merely "tendering" a witness for cross-examination without conducting an examination-in-chief has been unequivocally condemned by the judiciary. In Sukhwant Singh v. State Of Punjab (1995 SCC 3 367), the Supreme Court, citing a long line of High Court decisions including Veera Koravan v. Emperor (AIR 1929 Mad 906), Sadeppa Gireppa Mutgi v. Emperor (AIR 1942 Bom 37), and Kesar Singh v. State (AIR 1954 Punj 286), held that such a practice is a "flagrant_violation of Section 138 of the Evidence Act" and renders the testimony unreliable. The Court reasoned that the absence of examination-in-chief means there is no substantive evidence from that witness for the prosecution, and the defence is put in an awkward position of cross-examining a witness who has not deposed against them. Such procedural lapses can weaken the prosecution's case significantly, potentially leading to acquittal.
Waiver or Failure to Avail Opportunity to Cross-Examine
The right to cross-examine, though fundamental, can be waived. If a party, despite being afforded a fair chance, fails to avail of the opportunity to cross-examine a witness, they cannot subsequently challenge the statement made in the examination-in-chief on the ground of lack of cross-examination. The Himachal Pradesh High Court in ASHWANI KUMAR SHARMA v. M/S HIMACHAL FABRICS (Himachal Pradesh High Court, 2023) and OM PARKASH v. MANOJ KUMAR (Himachal Pradesh High Court, 2024) affirmed that once a party fails to avail such a chance, the statement in examination-in-chief can be considered complete evidence. The critical element is the provision of a "fair chance" to cross-examine.
Witness Unavailable for Cross-Examination After Examination-in-Chief
The situation where a witness has been examined-in-chief but becomes unavailable for cross-examination (due to death, illness, etc.) presents complexities. While Section 33 of the Indian Evidence Act, 1872, deals with the relevancy of certain evidence for proving, in a subsequent proceeding, the truth of facts stated in it, its application to a later stage of the *same* proceeding where cross-examination is incomplete is nuanced. The primary concern remains the lack of testing of the evidence through cross-examination. In State Of Sikkim v. Pemba Sherpa And Another (Sikkim High Court, 1980), while discussing the right to cross-examine before charge, the court touched upon Section 33, but the general principle is that evidence not subjected to cross-examination is considered weak. The weight attached to such incomplete testimony would depend heavily on the facts and circumstances, the nature of the evidence, and the reasons for unavailability.
Judicial Scrutiny and the Imperative of Fair Trial
The judiciary plays a crucial role in ensuring that the right to cross-examine is not unduly curtailed and that the process is fair. In Vijender v. State Of Delhi (1997 SCC 6 171), the Supreme Court overturned convictions due to significant procedural irregularities and evidentiary deficiencies, including improper reliance on testimonies not adequately tested. The Court emphasized strict compliance with evidentiary laws.
The overarching principle of fair trial demands that the accused, in particular, be given a full opportunity to defend themselves, and cross-examination is an indispensable part of this defence. In Kali Ram v. State Of Himachal Pradesh (1973 SCC 2 808), the Supreme Court, while emphasizing the presumption of innocence, acquitted the appellant, scrutinizing the evidence, including confessional letters whose authenticity was doubted. Untested or inadequately tested evidence cannot form the basis of a conviction, especially in serious criminal charges. Similarly, in Prakash v. State Of Karnataka (2014 SCC 12 133), the Supreme Court acquitted the accused in a case based on circumstantial evidence, highlighting deficiencies in the prosecution's case. Effective cross-examination is vital to expose such deficiencies.
Courts also regulate the process of cross-examination. For instance, in Ram Bali And Others v. State (Allahabad High Court, 1950), it was noted that cross-examination aimed at contradicting a witness on irrelevant matters without proper foundation is against the law. The court has the power to control cross-examination to prevent harassment or humiliation, especially of victims (Govind v. State Of M.P., Madhya Pradesh High Court, 2004, citing State of Punjab v. Gurmit Singh, 1996 SCC (Cri) 316).
The right to cross-examine may also extend between co-defendants if their interests are hostile. In Des Raj Chopra & Ors. v. Shri Pooran Mal & Ors. (1974 SCC ONLINE DEL 158, Delhi High Court), the court permitted petitioners (tenants) to cross-examine a witness of a co-respondent whose interests were adverse, before the main opposing party (landlord) cross-examined. This underscores the principle of allowing evidence to be tested by all adversely affected parties.
Conclusion
The absence or waiver of cross-examination has profound evidentiary consequences in the Indian legal system. The general rule that unchallenged testimony given in examination-in-chief is deemed accepted underscores the critical importance for a party to confront and question adverse evidence. Failure to do so not only leads to the acceptance of the witness's version on that point but also curtails the party's ability to later impeach that witness's credibility regarding the unchallenged statement.
While the opportunity to cross-examine can be waived, the right itself is a fundamental component of a fair trial, integral to the process of eliciting truth and ensuring justice. Judicial pronouncements consistently affirm the indispensability of cross-examination and deprecate practices that undermine this right, such as tendering witnesses without examination-in-chief. Ultimately, the rules and principles governing the effect of no cross-examination are geared towards upholding the integrity of the trial process, ensuring that judicial findings are based on evidence that has been, or could have been, appropriately tested.