Right of a Co-Accused or Co-Defendant to Cross-Examine another Accused’s/Defendant’s Witness is Limited – It is Possible Only When the Statement of the Witness Becomes “Adverse”

Saji Koduvath, Advocate, Kottayam.

CONSTITUTIONAL BASIS

Article 21 – Right to Life and Personal Liberty: The Supreme Court has consistently held that Article 21 includes the right to a fair trial, which necessarily includes the right to confront and cross-examine adverse witnesses.

In Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1, our Apex Court held as under:

  • “In the Indian Criminal jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.” (Quoted in: Rattiram v. State of M.P., AIR 2012 SC 1485; (2012) 4 SCC 516)

INDIAN EVIDENCE ACT, 1872 (Indian Sakshya Adhiniyam, 2025)

Section 138, Indian Evidence Act  

  • Order of Examinations “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.”
  • Any adverse party has the right to cross-examine.
  • If a co-accused’s interests are adverse to the witness or to the party calling the witness, the co-accused becomes an “adverse party” for that limited purpose and may cross-examine.

CODE OF CRIMINAL PROCEDURE, 1973 (CrPC) Indian Nagarik Suraksha Sanhitha, 2025

Evidence for Prosecution

Section 231 CrPC:

  • The prosecution shall be called upon to lead evidence, and the accused shall have the right to cross-examine prosecution witnesses.

Section 233, CrPC –

  • Evidence for Defence: The accused may enter on his defence and produce his own witnesses.

Court Decisions

(a) In Bhuboni Sahu v. The King, AIR 1949 PC 257

  • The Privy Council (Sir John Beaumont) observed – “A confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of ‘evidence’ contained in S. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.” (Quoted in: Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184; Adambhai Sulemanbhai Ajmeri v. State of Gujarat, 2014-7 SCC 716; Rabindra Kumar Pal @ Dara Singh VS Republic of India, AIR 2011 SC 1436; 2011-2 SCC 490; Superintendent of Police, CBI/SIT v. Nalini, (1999) 5 SCC 253.)

 (b) In P. Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242

  • Our Supreme Court examined the scope of the provisions of Section 311 Cr.P.C. and held as under:
  • “Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:
  • ‘In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.’
  • ‘We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old….. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.” (Quoted in: Natasha Singh v. CBI, 2013 5 SCC 741)

CODE OF CIVIL PROCEDURE, 1908 (CPC)

CPC does not expressly mention “cross-examination” though its procedural framework implies it through:

  • Order XVIII Rule 4 & 5: Evidence of witnesses to be taken orally in open court (subject to cross-examination by the adverse party).
    • Order XVIII Rule 2(2): Parties have the right to “state their case and produce their evidence.”
    • Order XVIII Rule 15: Continuation of hearing by successor judge includes evidence and cross-examination already done.

When several defendants are present, and their defences are mutually adverse, each defendant has the right to cross-examine the witness of the other.

Principle in Civil Trials

  • If the defenses of co-defendants are joint or identical, one defendant cannot cross-examine the other’s witness as an “adverse party.”
    • But if their defenses are hostile or conflicting, each becomes an adverse party and gains the right to cross-examine.

Treatises

Sarkar on Evidence, eight edition p.1141, it is said as under:

  • “No special provision is made in the Evidence Act for the cross-examination of the co-accused’s or co-defendant’s witnesses. But the procedure to be adopted may be regulated by the well-known rule that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co- defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against. If there is no clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination.

Quoted in:

  • Ennen Castings Private Ltd. v. Sundaresh, AIR 2003 Kar 293
  • Chinnaiah v. Valliammal, 2023-3 LW 356; 2023-4 MLJ 544
  • Akhilesh Singh v. Krishan Bahadur Singh, 2020-4 CivCC 779; 2020-1 JLJ 452; 2020-1 MPLJ 457
  • Shiv Pratap Singh Tomar v. Seema Tomar, 2018(1) MPWN 118; 2018 (4) MPLJ 74
  • Bhajinder Singh v. Hardev Singh, 2017-3 CivCC 260; 2017-238 DLT 422; 2017-3 LJR 7
  • Mohamed Ziaulla v. Sorgra Begum, 1997 ILR Kar 1378; 1997-5 KarLJ 709
  • Sohan Lal VS Gulab Chand, AIR 1966 Raj 229

In ‘Principles and Digest of the Law of Evidence’ by M. Monir, third edition, p.1114 , it is said as under:

  • “A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them.”

Phipson on Evidence, tenth edition, para.1538 reads as under:

  • “A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence though there is no issue joined between them.”

Court Decisions

1. In Ennen Castings Private Ltd. v. Sundaresh, AIR 2003 Kar 293, it is said as under:

  • “9. AS a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examine the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony to criminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant’s witnesses, if his co-defendant’s interest is hostile to his own.
  • 10.  THOUGH there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross-examination, it is settled law that when allegations are made against the party to the proceedings before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and witness is cross-examined that evidence becomes admissible.”

2. In Shiv Pratap Singh Tomar v. Seema Tomar, 2018(1) MPWN 118; 2018 (4) MPLJ 74, after quoting the above treatise it was observed as under:

  • “8. Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/ co-respondent, however, having regard to the object and scope of cross-examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross-examined that evidence becomes admissible. (Quoted in:)

3. In Akhilesh Singh v. Krishan Bahadur Singh, 2020-4 CivCC 779; 2020-1 JLJ 452; 2020-1 MPLJ 457, (after quoting the said passages in Shiv Pratap Singh Tomar v. Seema Tomar, 2018(1) MPWN 118; 2018 (4) MPLJ 74) it was held as under:,

  • “9. Therefore, it is very clear from the aforesaid passages that it is settled law that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not to given. Therefore, the condition precedent for giving an opportunity to a defendant/respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interests is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/ co-respondents, then before the Court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the Court can act.”

Conclusion

The right to cross-examine is both a statutory and constitutionally guaranteed right.

  • On the criminal side, a co-accused may cross-examine another’s witness only when the testimony adversely affects him.
  • On the civil side, a co-defendant may do so only when their defences are conflicting or adverse.

This doctrine ensures the principle of natural justice — audi alteram partem.

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