Tuesday, 14 August 2018

SOME TECHNIQUES TO CROSS EXAMINE LIKE A PRO

  " He who appears as it were uneasy by reason of the wickedness of his own crimes, shifts from place to place, who suddenly coughs much and likewise draws his breath now and again, who scratches the ground with his feet, who shakes his hands and clothes, the color of whose countenance changes, and whose forehead sweats, whose lip becomes dry, who looks above and about him, and who talks much irrelevantly, in a hurried manner, and without being questioned, should be known as a false witness".
( Ref: Narada Smriti) 



Cross examination is a process mostly about eliciting admissions that suit your theory and dismantle that of your opponent. Since it is safe to assume that most of us in the civilized world are aware to some extent as to what cross examination is through observing it or watching movies of course, let us delve straight into the subject, its techniques and their application in real life.

This post presents certain tips and techniques extracted from various authentic sources, which if effectively applied can be of great benefit to your case. 

EXAMINATION OF WITNESSES  

  • Witnesses upon cross-examination may be asked as to any vindictive or revengeful expressions they may have used against the party to the cause, where such expressions would affect the credit or character of the witness. But the answers of the witnesses to irrelevant questions cannot as a general rule, be contradicted; consequently if a party choose to cross examine a witness as to any irrelevant and collateral fact, he is bound by the answer. 

  • It is well settled that a witness may be asked upon some former occasion a different  and contradictory account of same subject was given. If the witness gives an affirmative answer, the question affects his credit, of course, whether the subject of the answer be relevant or irrelevant to the issues involved. If however, he answers in the negative and the subject of answer be irrelevant to the issues, the answer is conclusive and the witness cannot be contradicted by other witnesses.

  • But, if the subject  of answer be relevant to the issues, then evidence may be given to show that on a former occasion the witness has given a different account of the same subject, and the inquiry is made for purpose of laying a foundation of contradictory statement.

  • If a witness is dishonest  and not desirous of telling the truth, it is very important that he should be cross examined rapidly, so that he can have no time to concoct plausible answers between questions.

  • In conducting examination of witness who you believe has sworn falsely, the advocate has two courses open to him. He may show his distrust of witnesses by his manner, looks, and tone of voice, or he may examine him as if he thought him an honest witness.

  •  When you succeed in making a point and extracting an admission, leave it alone, until your turn to address the judge. If a dishonest witness has inadvertently made an admission injurious to himself, and by your dwelling upon it, becomes aware if the effect, he will endeavor to shuffle out of it, and perhaps succeed in doing so!

  • The advocate cross examining a witness should conduct his examination with the testimony of other witnesses in view, and endeavor, if possible, to cure a contradiction by the witness on whose side he has been called. He should also try to make the witness contradict himself, if he believes that he is lying or is mistaken. 

  • If, however, the witness is not telling the truth, he should be exposed, or, if he is mistaken his mistake should be explained out of his own mouth, if possible, and if a satisfactory explanation cannot be obtained, the advocate in his arguments may comment with damaging effect of his mistake.


THE OBJECT OF CROSS EXAMINATION IS NOT TO PRODUCE STARTLING EFFECTS, BUT TO ELICIT FACTS, WHICH WILL SUPPORT THE THEORY INTENDED TO PUT FORWARD.
  • Few Examples:
         Two false witnesses were examined out of hearing of each other, and on being asked under what sort of tree the criminal act was done, the first said “ a mastic tree” while the other said “ holm tree”. 

“What did you have for dinner?”. To merit of cause the contents of dinner were altogether irrelevant and indifferent. But, if in speaking of  dinner given on an important or recent occasion, six persons, all supposed to be present, give a different bill of fare, the contrariety affords evidence pretty satisfactory though but of circumstantial kind, that at least some of them were not there.”

  •  In the examination of witnesses, don’t lose sight of the fact that the interest of the witness in the subject matter of the controversy, if he is a party to the cause, or interested in the settlement of a question which arises in the case, or if he is related by consanguinity or affinity to the party in whose favor he has been called, or is at enmity with the party against whom he is testifying, or the friend or enemy of either of the parties, will be apt to cover his story, and make it favorable or unfavorable according to interest or bias of witness.

  • One of the effective technique to discredit a witness is to inquire closely into sources of his knowledge.

  • When a witness has given in detail a narrative of a past transaction and you wish to show to court that he was mistaken, you would picture the scene in your own mind, place and persons and accessories (Abbetors). You should then have the witness repeat his narrative, taking care to note its congruity, want of congruity with accompanying circumstances, then you are apt to detect improbabilities and even impossibilities.


  • Usually the experienced cross-examiner does not take the statements of honest witnesses for granted, but will investigate them thoroughly, and endeavor to show that they are mistaken to what they think they heard or saw, and will in the mildest and most patient manner, prove his examination of a witness who believes that he is telling the truth, that form the surrounding circumstances and the testimony of other witnesses as well as from the unreasonableness of his story, his story cannot be relied upon.

  • Sometimes it is pertinent to impeach the credit of a witness by showing that, from his history, he is not a man likely to swear the truth if it becomes to his interest to swear to the contrary.

  •   The best method of examining a witness of crooked character is to take advantage of their enthusiasm in the cause of the party whose side they are to maintain, and quietly and gradually lead them to an extreme position which can neither be fortified nor successfully defended.

  • In questioning witnesses upon cross-examination, it is a good plan to ask the most important questions as if they were the most unimportant, and infact, to appear to the witness to want exactly the opposite of what they really want to get out of him.

  •  More unfair and more perplexing to the witness, as well as more difficult fro the advocate to detect, are those insidious questions in which the assumption is covertly made.

  •   Many a witnesses have been sorely puzzled by being required to answer “yes” or “no” to a question which in form is single, but in fact is double edged. For example, “ you hurt yourself by jumping off the train running at forty miles an hour?” OR “ You paid money to plaintiff’s agent?” A witness who is confronted by an advocate demanding a “yes” or “no” answer, is not in a condition to clearly perceive the unfairness of questions put to him.

  • The improbability or impossibility of the statements of witnesses will often furnish an advocate with a clue which, if followed, will lead to valuable results.

  • Never cross-examine any more than is absolutely necessary.
  
      Finally to conclude with a quote by Witt: "  I know nothing so embarrassing to counsel as an instruction to ask questions derogatory to character. Suppose counsel has in his brief a sad record of the party to the suit against whom he is retained, or of the principal witness. It by no means follows  that it is just to use it. You have to ask yourself many searching questions. Is the matter at issue so serious as to demand exposure with all its pain to the victim? Does the record really impeach the veracity of the person, as distinct from his morality? Will justice be hindered or advanced by the question? Although the client may rub his hands with delight at the discomfiture of his foe, it is no part of the office of counsel to lend himself to that kind of warfare. The only justification for an interrogatory as to the past history of a witness is, that the answer must tend directly to show that he is not at all likely to tell the truth."                                                                             

Adv. Devavrat Bhangaonkar

Ph: 7709309062

RDS Legal and Associates 



                            

Monday, 5 June 2017

Employee Of ‘Tenant’ Partnership Firm Not Necessary Party In Rent Proceedings

The legal effect of eviction decree under the Rent Act is that the possession of the tenant-firm and persons claiming through such tenant become unauthorized. Since the tenant is a Firm, persons connected with the internal affairs of the Firm such as its partners and the employees working in the Firm are also bound by the eviction decree for the simple reason that all such persons are claiming through the tenant-Firm.

An employee of a tenant is never considered to be in actual possession of tenanted premises much less in possession in his legal right. Indeed, he is allowed to use the tenanted premises only with the permission of his employer by virtue of his contract of employment with his employer. An employee, therefore, cannot claim any legal right of his own to occupy or to remain in possession of the tenanted premises while in employment of his employer or even thereafter qua landlord for want of any privity of contract between him and the landlord in respect of the tenanted premises.

A tenancy is a creation of contract between the two persons who are capable to enter into contract called lessor/landlord and the lessee/tenant. The two persons can be either living person or juristic persons such as Partnership Firm or a Company.

Once the tenancy is created either orally or in writing with respect to a land or building then it is always subject to the relevant provisions of the Transfer of Property Act, 1882 and the State Rent Acts. Sections 105 to 111 of the TP Act provide certain safeguards, create some statutory rights, obligations, duties whereas the State Rent Acts, inter alia, specify the grounds to enable the lessor to evict the lessee/tenant from the demised premises.

If the lessee/tenant is a living person, then in such event, the tenant would also include his legal representatives in the event of his death together with his dependents living with the tenant in the tenanted premises. Likewise, if the lessee/tenant is a juristic person, i.e., partnership Firm then such tenant would represent the interest of all the partners of the Firm and the employees working in the Firm. Such persons since claim through the Firm, they have no right of their own in the tenancy and in the demised property qua landlord.

In rent proceedings the lessee/tenant is the only necessary or/and proper party and none else. A person, who claims through lessee/tenant, is not a necessary party.



Ref:

IN THE SUPREME COURT OF INDIA

CIVIL APPEAL No.11868 OF 2016
(ARISING OUT OF SLP (C) No. 19259 of 2010)

Nandkishor Savalaram Malu (Dead) Through Lrs.
…….Appellant(s)
VERSUS

Hanumanmal G. Biyani (D) Thr. Lrs. & Ors. 
……Respondent(s)

………...................................J. [A.K. SIKRI]
…...……..................................J. [ABHAY MANOHAR SAPRE]

November 29, 2016

Whether an accused charged with various offences under the IPC along with the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is entitled for anticipatory bail under Section 438 of the CrPC?

Section 18 of the SC/ST Act which reads as under:
“18. Section 438 of the Code not to apply to persons
committing an offence under the Act.- Nothing in section
438 of the code shall apply in relation to any case involving
the arrest of any person on an accusation of having
committed an offence under this Act.”

A reading of the above provision makes it clear that Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act.

Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.

Delhi High Court in Dr. R.K. Sangwan & Anr. vs. State, 2009 (112) DRJ 473 (DB) and in Crl. M.C. No. 3866/2008 and Crl. M.C. No. 1222/2009 titled M.A. Rashid vs. Gopal Chandra decided on 23.03.2012 and a decision of the Orissa High Court in Ramesh Prasad Bhanja & Ors. vs. State of Orissa, 1996 Cri. L.J. 2743, in spite of the specific bar under Section 438 of the Code, the Courts have granted anticipatory bail to the accused who were charged under Section 3(1) of the SC/ST Act.


Ref:

Vilas Pandurang Pawar & Anr. .... Petitioner(s)

Versus

State of Maharashtra & Ors. .... Respondent(s)

Supreme Court of India
SPECIAL LEAVE PETITION (CRL. ) NO . 6432 of 2012

...…………….…………………………J. (P. SATHASIVAM)
..…....…………………………………J. (RANJAN GOGOI)

SEPTEMBER 10, 2012.

Distinction between offence punishable under S 326 of IPC and S 307 of IPC

To establish charge under Section 307 of the Indian Penal Code, the proof of nature of injury by itself may not be sufficient. The respondents are under obligation to establish by circumstantial evidence that the appellant intended to cause death of the deceased or intended to cause injuries of the nature sufficient to cause death in ordinary course of the nature.

Two offences, one punishable under Section 326 of the Indian Penal Code and other punishable under Section 307 of the Indian Penal Code are distinct in nature inasmuch as 'intention' part of the offence is concerned. The offence punishable under Section 326 of the Indian Penal Code involves the act of accused which is 'voluntary' in nature whereas in the case for the offence punishable under Section 307 of the Indian Penal Code the prosecution is always under obligation to establish the requisite intention.

Ref:

Sanjay Shankar Shahu,
…. APPELLANT
Vs
The State of Maharashtra,
through P.S.O. Jaripatka,
Nagpur.
…. RESPONDENT

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 287 OF 2014
CORAM : M.L. TAHALIYANI, J.

DATED : NOVEMBER 07, 2014.

Procedure to be followed by court if objection is raised for asking particular question in cross examination

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 testifies on his examination in chief. The contention that the cross examination has to be restricted only to the statements made in the examination-in chief or in the pleadings cannot be accepted. It is always open in the cross examination to put questions in order that they can nullify or establish the veracity or otherwise of the allegations made in the proceedings.

When the relevancy and the admissibility of a particular question is seriously raised, it is the endeavour of the Court to elicit the answer after recording the objectives. The final decision on such objectives can be decided at the end of the trial. This view has been taken by this Court in the Judgment reported in 2015 SCC Bom 2571 in the case of Neema Hingarh vs. Ashish Hingarh, wherein it has been observed at Para 8 thus:

“8. In the case of Irfan Badshah (supra), the
learned Single Judge of Delhi High Court considered
Section 148 of the Indian Evidence Act, 1872 as also
the decision of the Apex Court in the case of Special
Cell, New Delhi v. Navjot Sandhi alias Afshan Guru,
(2003) 6 SCC 641, wherein it was observed thus,
“… the endeavour of the Court wherever
there is a serious dispute with regard to the
relevancy and admissibility of a question
should be to elicit the answer of the witness
after noting the objections. The final
decision to reject particular evidence as
irrelevant or inadmissible can be if required
taken at the end of the trial. This procedure
benefits even the appellate court as in a
case where the question is disallowed or
excluded from evidence and the appellate
court feels that the same was essential, it is
at this stage not required to remand back
the matter for re-examination of the witness.
Cross-examination is the main tool of an
accused to test the veracity of the evidence
of the witness and discredit his
trustworthiness. Moreover, this does not
mean that the trial court will not exercise its
discretion in disallowing irrelevant
questions.”

In such circumstances, I find that the procedure followed by the learned Trial court refusing to allow the questions at the time of the cross examination, is not at all justified, unless the Court comes to the conclusion that the questions are inter alia those which a party cannot be forced to answer and are patent erroneous and put to delay the proceedings and for oblique purpose or have no nexus with the dispute between the parties.


Evidence Act which clearly stipulates the questions which are permissible in cross examination of the witnesses. As a general rule, the Court would not be justified in imposing restrictions in the cross examination of a witness. But however the Court may in the course of the trial come to the conclusion that some of the cross examination was unnecessary and, in such a case, the Court has powers to control the cross examination of a witness by the Counsel but such power has to be exercised in a reasonable way. As such, the Trial Court should see that the cross examination is not conducted in a rumbling way or that the questions are impermissible under the provisions of the Indian Evidence Act.



Ref:
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 411 OF 2015

Mr. Ajit Sukhijia,
son of late Colonel (Dr.) Chamanlal Sukhija,

vs

1.    Mr. Edgar Francisco Valles,
2.      Miss Filomena Fernandes,
3.      Mrs. Guida Da Silva,
4.      Dr. Maria Lilia de Sequeira Sukhija,
5.      Mrs. Rajni Porob,
6.      Mr. Chandrakant Pissurlenkar,

Coram :- F. M. REIS, J

Date : 9 th July, 2015.