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Supreme Court of India· 24 September 2026

Can a defect in the cross-examination of a principal witness by counsel with no opportunity to prepare be cured by directing further cross-examination?

WARIS v. THE STATE OF MADHYA PRADESH
2026 INSC 1050 · CRIMINAL APPEAL NOS. 429-430/2020
Coram: Justice Vikram Nath · Justice Sandeep Mehta · Justice Vijay Bishnoi
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Answer

A defect in the cross-examination of a principal witness by counsel with no opportunity to prepare can be cured by directing further cross-examination.

Yes. Such a defect is confined to the cross-examination of one witness and does not infect the entire trial. Invoking its powers under Sections 391 and 367 of the CrPC to take further evidence where necessary for a just decision, the Court directed further cross-examination of the witness with protection to her and full access to the record for the defence; this was a proportionate cure rather than a retrial, no specific line of cross-examination or concrete residual prejudice having been shown to remain unavailable.

Headnote

Constitution of India — Article 21 — Indian Penal Code, 1860 — s.302 — s.376AB — Protection of Children from Sexual Offences Act, 2012 — ss.5-6 — Sentencing — Rarest of rare — Intermediate sentence — Indian Penal Code, 1860 — s.302 — Bachan Singh — Crime test and criminal test — Held: A sentencing court cannot assess the criminal test at zero while considering whether to impose the sentence of death; Bachan Singh commands that the crime be weighed together with the criminal, and a court assigning zero weight to the criminal disobeys that command. (¶182) Indian Penal Code, 1860 — s.302 — Burden on the State — Reformation — Held further: The State must establish that a convict is beyond reformation before the sentence of death can be sustained; where the State leads no such evidence, the possibility of reformation cannot be said to be excluded, and the alternative of life imprisonment is not foreclosed. (¶188, 190) Indian Penal Code, 1860 — s.302 — Union of India v. V. Sriharan — Intermediate sentence — Held further: The sentence of death is not the only adequate sentence where an intermediate sentence of imprisonment for the remainder of the convict's natural life without remission would meet the ends of justice. Death sentence commuted; conviction affirmed. (¶197, 203) Code of Criminal Procedure, 1973 — s.391 — s.367 — Cure of defective cross-examination — Held further: A defect in the cross-examination of a principal witness by counsel with no opportunity to prepare can be cured by this Court directing further cross-examination, rather than requiring a fresh trial. (¶24, 26)

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In the Court's own words
Paragraph 24The defect, however, was confined to the cross-examination of one witness, though an important one. It did not infect the entire trial. Sections 391 and 367 of the CrPC empower the appellate court, and the court dealing with a death reference, to take or direct the taking of further evidence where it is necessary for a just decision. The course adopted by this Court, namely directing the further cross-examination of PW-1 with adequate protection to the witness and full access to the record to the defence, was therefore a proportionate cure rather than a retrial.
Paragraph 26We therefore hold that the defect in the original cross-examination has been adequately remedied. The evidence of PW-1 must now be appreciated by reading together her deposition dated 16.07.2018 and her further cross-examination dated 14.06.2025, with due allowance for the passage of time between the occurrence and the further examination. SECTION B - THE PRINCIPLES OF APPRECIATION
Acts & Sections
s.302 Indian Penal Code, 1860s.376AB Indian Penal Code, 1860s.376(2)(f) Indian Penal Code, 1860s.376(2)(n) Indian Penal Code, 1860s.201 Indian Penal Code, 1860s.5 Protection of Children from Sexual Offences Act, 2012s.6 Protection of Children from Sexual Offences Act, 2012s.42 Protection of Children from Sexual Offences Act, 2012s.391 Code of Criminal Procedure, 1973s.367 Code of Criminal Procedure, 1973

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Also decided in this judgment
Can a sentencing court assess the criminal test at zero while considering whether to impose the sentence of death?Must the State establish that a convict is beyond reformation before the sentence of death can be sustained?Is the sentence of death the only adequate sentence where an intermediate sentence would meet the ends of justice?
Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections