The Indian Evidence Act,

Of Witness

acknowledgementI would like to express special thanks to my teacher, Prof. Sabina Salim, who

gave me the golden opportunity to do this project on the “Impeachment of

Credit of Witness” which is not only an extremely enriching and interesting

topic but also a means to increase my patience and hard work. He has also

been a beacon throughout this project and has guided me whenever

necessary.

I would also like to thank my parents and friends and all those people who

have contributed towards this project in any way, however small. Without

them some part of it would have been missing and the Project would not have

reached its completion.

Last but not least, I bow my head in gratitude towards the Almighty. Thank you

God!

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index

topic Pg. no.Abstract 4Table of cases 5Introduction 7Section 146 8Scope 9Tape- recording 11Cross examination in proceedings for maintenance by wife

12

Irrelevancy of character 12Section 153 14Object 15Principle 15Exclusion of evidence 18Exception 1 20Exception 2 21Questions impeaching credit 21Section 155 22Scope 23Clause 1 23Clause 2 23Clause 3 24Clause 4 25Cross examination of witness 26Tape recording 26Section 143, 153 and 155 27Shri N. Sri Rama Reddy V. V.V. giri 28Bibliography 30

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AbstractCross – examination as to credit, or impeachment is designed to attack the credibility of the witness in the eyes of the jury. It may consist of exploration of the facts of the case using a previous statement made by witness inconsistent with the witness’s evidence at trial or it may involve matters extraneous to the actual facts of the case, for example, evidence of bad character or medical or other evidence, to effect of which is to suggest that the witness should not be believed on oath. Matters which affect only the credit of the witness, and are not otherwise relevant to the case are collateral. There is a important rule that, while it is perfectly permissible to conduct a cross- examination solely on issue of credit, the cross examiner may not thereafter introduce further evidence of his own to contradict answers given by the witness during cross- examination, of the further evidence would be relevant only to collateral issues. However, it is not always easy to distinguish collateral issues from issues which may have some other relevance, and the rule as to collateral issues itself has a number of important exceptions.

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Table of Cases

Attorney General v. Hitchcock, page 16

Babu Rao Patel v. Bal Thackeray, page 10, page 11

Bhaskaran Nair alias Bhasi V. State of Kerela, page 16

Brundaban Mohapatra v. Kulamani Mishra , page 10

Chari v State, page 10

Deb Narayan Halder v. Anushree Halder, page 12

Deepchand v. Sampathraj, page 11

Govardhansing v. Chandanmal page 11

Hussanaiah v, Yerraiah, page 11

Ibrahim v. State, page 10

Kamal Kanto Das V. State, page 20

Kehar Singh v. State (Delhi Administration), page 24

Lior Avi Ben Moyal v. Narcotics Control Bureau, page 17

Mukhera Reddi v. State of A.P, page 23

Mukhera Reddi v.State of A.P, page 24

Prakash v. State of Maharasthra, page 11

R V. Yewin, page 21

Ragho Prasad v. Emperor, page 11

Rambali V. State, page 18

Rana Pratap v. State of Haryana, page 19, page 23

Sita Ram and another V. State of Punjab, page 24

Sri Rama Reddy V. V. V. Giri page 28, page 11, page 17

State of Punjab v. Gurmit Singh & Ors page 13

State Rep. by Inspector of Police v. Saravanan and anr, page 15

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Stephen Sereverante v. The King, page 27

Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra, page 15

Vinod Kumar v. State , page 12

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Introduction:

Impeaching the credit of a witness means to show the real character of the witness so that the

court may not trust him. Credibility of a witness is very important for the court in deciding

the truth of the testimony. Indeed, it would be unfair to convict anybody solely on the

testimony of a habitual liar. Thus, it is imperative upon the adverse party to make sure that

the witness is credible and so it can ask questions that may impeach the credit of the witness. 

When?

As per Section 146, which describes the questions that are lawful in cross examination, it is

lawful to ask questions during cross examination to test his veracity, to discover who he is

and what his position is in live, and to shake his credit by injuring his character. Thus, it is

clear that the credit of a witness can be impeached by the adverse party in his cross

examination. However, when it is suggested that the witness is not speaking the truth, it is

necessary to draw his attention to it by questions in cross examination. It cannot be argued

that a witness is unworthy of credit without giving his an opportunity to explain while he is in

the witness box.

How?

If a witness denies the suggestions put in cross examination, evidence to contradict him can

be called. This flows from the general rule given in Section 5, which allows evidence of

relevant facts to be given. However, when such evidence is not relevant otherwise and is only

useful in shaking the credit of the witness, the provisions of Section 153 and 155 are

applicable. Section 155 provides the ways through which the credit of a witness may be

impeached. Section 153 - Exclusion of evidence to contradict answers to questions testing

veracity When a witness has been asked and has answered any question which is relevant to

the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence

shall be given to contradict him; but, if he answers falsely, he may afterwards be charged

with giving false evidence but it has two exceptions. This section provides an important

protection to the witness against character assassination. If a witness has answered a question

whose purpose is only to discredit him, whatever may be his answer, no evidence can be

shown to disprove or contradict him. This applies only to the answers that are not relevant to

the facts of the case and not to answers to the questions that are relevant to the case. The two

exceptions contained in the section are meant to prevent misuse of this provision. Thus, a

person is not allowed to lie about his prior conviction and he is not allowed to be partial.

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Section 146:

Questions lawful in cross-examination

When a witness is cross-examined, he may, in addition to the questions herein before referred to be asked any questions which tend-

 (1) to test his veracity.

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly t expose him to a penalty or forfeiture.

Provided that in a prosecution for an offence under section 376, section 376A, section 3768, section 376C, section 3760 or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.1

1 Ins. By the Criminal(Amendment) Act, 2013 (13 of 2013), Section 28 (w.e.f. 3.02.2014)

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Scope

Sections 132, 138, 146, 147 and 148 embrace the whole range of question which can properly

be put to a witness. In section 138 it is stated that cross-examination must relate to relevant

facts, the second para of Section 138 runs as the “examination and cross-examination of a

witness must relate to relevant facts.” The words in Section 146 “in addition to the questions

herein before referred to” have reference to the para of Section 138 referred to above.

In addition to the questions which may be asked in cross-examination under the provisions of

Section 138, a witness may be further asked the question mentioned in Section 146. This

section extends the power of cross-examination far beyond the limits of Section 138 which

confines the cross-examination to relevant facts including the facts in issue. Under Section

146 a witness may be questioned to:

I. Test his veracity,

II. To discover who he is and what is his position in life, or

III. To shake his credit by injuring his character.

A. To test his veracity

A witness may be cross-examined not only as to the relevant facts but also as to

all facts which reasonably tend to affect the credibility of his testimony. The

statement of a witness being testimonial of their nature, it is right to subject them

to impeachment in the appropriate ways. So it is competent to the parties to put

almost any question in cross-examination which he may consider important to test

the accuracy or veracity of the witness. A witness may always be subjected to a

strict cross-examination as test of his accuracy, his understanding, his integrity,

his biases and his means of judging.

B. To discover who he is and what is his position in life

It is common practice to make inquiry into the relationship of witness with the

party on whose behalf he is called business, social and family also to inquire as to

his feeling towards the party against whom his testimony in being given. This is

permissible in order to place his testimony in a proper light with reference to bias

in favour of one party or prejudice against the other. Section 146 of the Act can

properly be invoked to test the veracity of witness and also to discover who he is

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and what is his position in life and shake his evidence by inquiring his character. It

may be shown that he has no regard for the sanctity of oath.2

The questions put by the cross-examining counsel may not be defamatory, but the

answers elected from the witness might become defamatory. If the witness really

thinks that the answer would defame him, he can seek the protection of the court

and refuse to answer the question. If the witness does not raise any such objection,

the party for whom the counsel is representing would not be liable for defamation

under section 499, IPC.3

C. To shake his credit by injuring his character

In determining the relevancy of character as affecting the credit to be given to a

witness the first question is what kind of character is relevant? Whether bad moral

character in general or some other specific bad quality in particular is admissible.

Sometimes it is argued that bad general character necessarily involves an

impairment of the truth-telling capacity.

Should a witness whose general character is proverbially bad as to licentiousness,

and lawlessness, who is in his habits regardless the precept of religion and

reckless of the consequences of vice, be entitles to the same credit as another

whose character is without stain and whose whole life has been marked by piety,

virtue and truth.

To the contrary, it has been truly said that with many, telling the truth is a habit

and a principle which they adhere to always, though they may indulge in drinking,

swearing and gambling, or making close bargains. With other, lying is the habit or

principle and if elevated to be senators or legislators or made church-member, it

does not always reform them.

The object of the law is to show the character of the witness as to telling the truth.

In English law for the purposes of proving character by repute general character is

excluded, and character for veracity only is stated. The credit of a witness can be

said to have been shaken only if it can be shown that he is not a man of veracity

and not that he is of bad moral character. A black-marketeer is not necessarily

untruthful nor a non-black marketer necessarily a man of veracity.4

2 Ibrahim v. State, AIR 1969 Goa 68.3 Brundaban Mohapatra v. Kulamani Mishra (1986) 61 Cut LT 37 (Ori).4 Chari v State, AIR 1959 All 149; Babu Rao Patel v. Bal Thackeray, 1977 Cri LJ 1637 (Bom).

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Under this section a witness can be cross-examined to shake his credit by injuring

his character. Character evidence may nit be relevant to decide an issue in a case,

but cross-examining counsel is given liberty under this section for the purpose of

shaking the credit of a witness to put questions affecting his character.5

When a witness has been put questions impeaching his character and when the

answer to those questions are quite satisfactory the credit of the witness cannot be

said to have been damaged.6

The lawyer is entitled to put questions to shake the credit of a witness by injuring

his or her character, there must be some reasonable ground for thinking that the

imputation conveyed by the question is well founded.7 Even indecent and

scandalous questions can be put if those have bearing upon a fact in issue. Such

questions should not be disallowed on the ground that these are irrelevant from the

point of view of prosecution. But all sorts of irrelevant question are not within the

purview of section 146 (3) and the question which tend to harass or embarrass a

witness are impermissible.8

Tape-Recording

Tape-recorded statement can be used to test the veracity of witness and also to impeach his

impartiality under section 146.9 A tape itself is primary and direct evidence admissible as to

what has been said and picked up by the recorder. A previous statement, made by a person

and recorded on tape, can be used not only to corroborate the evidence given by the witness

in Court but also to contradict the evidence given before the Court, as well as to test the

veracity of the witness and also to impeach his impartiality. Apart from being used for

corroboration, the evidence is admissible in respect of the three matters, under section 146(1),

Exception 2 to section 153 and section 155(3) of the Evidence Act. Section 146 deals with

questions lawful in cross-examination and in particular, clause (!) thereof provides for a

witness being cross-examined by questions being put to him which tend to test his veracity.

Section 153 generally deals with exclusion of evidence to contradict answers to questions

testing veracity, but Exception 2 states that if a witness is asked any question tending to

5 Hussanaiah v, Yerraiah, AIR 1954 AP 39; Prakash v. State of Maharasthra, 1975 Cri LJ 1297 (Bom).6 Ragho Prasad v. Emperor, AIR 1929 Pat 180.7 Deepchand v. Sampathraj 1970 Cr LJ 260, 262, 18 Law Rep 235, (!969) 1 Mys LJ 606, 1969 Mad LJ (Cr) 1504, AIR 1970 Mys 34.8 Baburao Patel v. Bal Thackeray 1977 Cr LJ 1637 (Bom); Govardhansing v. Chandanmal (1982) 1 Bom CR 519.9 Rama Reddy v. V.V. Giri, AIR 1971 SC 1162.

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impeach his impartiality and answers it by denying the facts suggested, he may be

contradicted.

Section 155 deals with impeaching the credit of witness by the various ways dealt with in

clauses (1) to (4). One of the ways by which the credit of a witness may be impeached is dealt

with in clause (3) and that is by proof of former statements inconsistent with any part of his

evidence which is liable to be contradicted.

Mr. Daphtary pointed out that section 146 must be read with section 153. This contention

cannot be accepted in its entirety. It may be that clause (3) of section 146 may have to be

read along with the main section 153 but clause (1) of section 146 and Exception 2 to section

153 deal with different aspects.

Section 146 does not deal with any direction which can be given by the court to the witness.

It does not envisage giving direction by a court to a witness to give sample voice on tape-

record for comparison.10

Cross-examination in proceedings for

maintenance by wife

Where there was nothing in pleadings or in evidence examined by wife that husband had

affair with any other lady, the Magistrate should not have permitted such a question to be put

to the witness, particularly when it reflected not only on the character of the appellant but

also on another lady who was not a party to the proceedings.11

Character is irrelevant in deciding the issue of

consent

By the Criminal (Amendment) Act, 2013, proviso of section 146 of Indian Evidence Act was

substituted by section 28 of the Criminal Act.

Previous Proviso-

10 Vinod Kumar v. State 1981 Cr LJ 927, (1981) 19 DLT 390, 1981 Chand Cr C (Del) 94.11 Deb Narayan Halder v. Anushree Halder, AIR 2003 SC 3174 : 2003 (11) AIC 129 (SC).

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Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible

to put questions in the cross-examination of the prosecutrix as to her general immoral

character.

New Proviso-

Provided that in a prosecution for an offence under section 376, section 376A, section 3768,

section 376C, section 3760 or section 376E of the Indian Penal Code or for attempt to

commit any such offence, where the question of consent is an issue, it shall not be

permissible to adduce evidence or to put questions in the cross-examination of the victim as

to the general immoral character, or previous sexual experience, of such victim with any

person for proving such consent or the quality of consent.

If the question of consent is in issue, character of the prosecutrix is irrelevant. The lawyer

cannot shake the credit of witness in this case. The Supreme Court quite vehemently voiced

its concern about how the prosecutrix in a rape case is treated in a criminal trial in the

following words:

“the trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and

unjustifiably even characterized her as a ‘girl of loose morals’ or ‘such type of girl’ We must

express our strong disapproval of the approach of the trial court and its casting a stigma on

the character of the prosecutrix.

There has been lately, lot of criticism of the treatment of the victims of sexual assault in the

court during their cross-examination. The provisions of Evidence act regarding relevancy of

facts notwithstanding, some defense counsel adopt the strategy of continual questioning to

the prosecutrix as to the details of the rape. The courts, therefore, should not sit as a silent

spectator while the victim of crime is being cross-examined by the defense. It must effectively

control the recording of evidence in the court. While every latitude should be given to the

accused to test the veracity of the prosecutrix and the credibility of her version through

cross-examination, the court must also ensure that cross-examination is not made a means of

harassment or causing humiliation to the victim of crime.”12

12 State of Punjab v. Gurmit Singh & Ors 1996 SCC (Cr) 316, Dr AS Anand and S Saghir Ahmad, JJ.

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Section 153

Exclusion of evidence to contradict answers to

questions testing veracity:

When a witness has been asked and has answered any question which is

relevant to the inquiry only in so far as it tends to shake his credit by

injuring his character, no evidence shall be given to contradict him; but,

if he answers falsely, he may afterwards be charged with giving false

evidence.

Exception 1:

If a witness is asked whether he has been previously convicted of any

crime and denies it, evidence may be given of his previous conviction.

Exception 2:

If a witness is asked any question tending to impeach his impartiality,

and answers it by denying the facts suggested, he may be contradicted.

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Object.

Section 153 provides further protection to a witness from being injuring his character as well

as to prevent prolong trial to an unreasonable period. Under this section “the court must not

be forced to concentrate its mind to assess the witness without assessing the merit of the

case.” Because the court is to find the facts of the case not to assess the character of a

witness.

Principle:

When a witness gives answer to a question as to his credit then it is conclusive and no further

evidence is allowed to be given to contradict it except few specific cases.13

Where there is merit of the case and the relevant fact having direct connection with issue

which is denied by the witness in cross-examination, the defence has right to establish

contradiction by producing extraneous evidence so that the witness may not take any

advantage.

In the case of State Rep. by Inspector of Police v. Saravanan and anr.,14 it was seen in this

case that the contradictions/omissions must be of such nature which materially affect the trial.

Minor contradictions, inconsistencies, embellishments or improvements which do not affect

the core of the prosecution case should not be made a ground to reject the evidence of the

witness in entirety.

In the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra,15 it

was held that Omissions which amount to contradictions in material particulars, i.e., go to

the root of the case / materially affect the trial or core of the prosecution case, render the

testimony of the witness liable to be discredited.

This section provides an important protection to the witness against character assassination. If

13 Such exceptional cases have been defined under exception 1 and exception 2 of this act14 AIR 2009 SC 15215 (2010) 13 SCC 657

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a witness has answered a question whose purpose is only to discredit him, whatever may be

his answer, no evidence can be shown to disprove or contradict him. This applies only to the

answers that are not relevant to the facts of the case and not to answers to the questions that

are relevant to the case. The two exceptions contained in the section are meant to prevent

misuse of this provision. Thus, a person is not allowed to lie about his prior conviction and he

is not allowed to be partial. This section firstly talks about the exclusion of a evidence which

sprouts up the question of his veracity. Veracity or truthfulness is one of the important

aspects of person giving the evidence and it is presumed after an oath being sworn upon that

the witness is true and complete to his knowledge when he is standing in witness box and

speaks in the nature of justice. The evidence could be given only to facts in issue and those

declared to be relevant and of no others. The credit and character of a witness to be examined

in future is not a fact in issue or fact declared to be relevant by any of the provisions of the

Act.16

Sir James Fitzjames Stephen when he talks about as to general rules of evidence, while

drafting this act made an important point in his view regarding the impeachment of credibility

of witness through previous statements. He says that when evidence is pertaining to some

questions as to relevant fact, the answers may be contradicted by independent witness but

when the question is to irrelevant facts, they cannot be contradicted. The test which may

distinguish the collateral matters from relevant matters is that if the answer of a witness is

which you would allow to prove on your part as evidence, then it is a matter on which you

may contradict him.

It further extends saying that when it will frequently be permitted to cross-examine witnesses

with regard to matters wholly immaterial to the issues in the case when cross-examination is

aimed at testing credibility. Thus a witness may be interrogated concerning his past

indiscretions, regardless of the fact that information elicited has no probative value except for

its bearing upon credibility factors. On the other hand, extrinsic evidence relative to prior –

inconsistent statements is almost invariably rejected unless it concerns facts relevant to

material issues in the case. Contradiction, therefore, at least as it refers to extrinsic proof, is

forbidden on collateral matters. The term collateral is as ambiguous as it is overworked and

furnishes no real test. In essence it means that the matter inquired about is not logically

relevant, independently of pure impeachment, or else so remote that it should not be inquired

into through the medium of contradictory extrinsic testimony. Many tests have been proposed

16 Bhaskaran Nair alias Bhasi V. State of Kerela, ILR (1991)1 Ker 98

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in many precedents, but none has endured so satisfactorily as the test laid down more than a

century ago in Attorney General v. Hitchcock. As Dean Wigmoreis has so ably phrased it,

the test reads: "Could the fact, as to which error is predicated, have been shown in evidence

for any purpose independently of the contradiction ?"

Applying the foregoing test, two classes of facts would be admissible independently of self

contradiction:

(1) facts relevant to matters at issue;

(2) facts admissible to discredit the witness by showing motive, bias, interest, or any other

similar matter likely to affect his testimony. Bias, state of mind and feelings of a witness are

not collateral factors, and bias or like emotions may be shown by extrajudicial statements of

the witness from which an inference as to his feelings may be drawn. In pointing up bias,

counsel would thus be allowed to contradict the primary witness by attempting to extract

admissions on cross-examination or by offering extrinsic evidence independently of cross-

examination.

In Sri Rama Reddy V V V Giri 17 , it was decided that evidence of a prior statement can be

allowed provided it is relevant to the matte in issue. It was further clarified that such evidence

could be used to support of contradict the evidence given in court.

In the case of Lior Avi Ben Moyal v. Narcotics Control Bureau on 28 November 2008, in the

high court of Punjab and Haryana, One Mr.Ravi Kant Pawar was produced as witness and

was to be cross-examined, an application was made for playing the Video CD, which

contained the conversation recorded with Mr.Ravi Kant. His cross-examination was deferred.

This request was allowed and the Audio/Video CD was played. Ravi Kant Pawar was then

questioned about his voice/picture appearing on Audio/Video CD etc. He denied that the

voice appearing on the CD was his. The contents of the CD were also termed as wrong.

Mr.Ravi Kant Pawar replied in the negative when questioned if he was prepared to give his

sample voice. Defence then moved an application for directing the witness to give his sample

voice so that it could be got compared with Audio/Video CD, which had been prepared by

carrying out a sting operation. The defence wants to ask these questions to shake the credit of

the witness by injuring his character and in the process wishes to impeach the credit of the

witness. He can further be questioned to shake his credit by injuring his character, although

17 1970 2 SCC 340

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answer to such questions might tend directly or indirectly to criminate him or might expose

or tend directly or indirectly to expose him to a penalty or forfeiture. To an extent, this

section is controlled by Section 153 of the Evidence Act, which talks of exclusion of

evidence to contradict answer to question testing veracity. When a witness has answered any

question which is relevant to enquiring as it tends to shake his credit by injuring his character,

then no evidence is to be given to contradict him. There are, however, two exceptions to this

section and, thus, evidence about previous conviction can be given when the witness denies

that he was previously convicted. Secondly he can be contradicted when the witness denies

facts suggested to impeach his impartiality. This evidence to contradict answer given to

testing veracity would be permissible under these exceptions, though otherwise evidence to

contradict a witness testing veracity is excluded.

In the case of Rambali V. State, 18 A witness Nazir Hassan stated that he was returning home

after collecting arus leaves from a place behind the house of Harbansh Singh where the

murder was committed and thus witnessed it. In cross-examination no question was put to

him that arus leaves were available near his own house so the witness had no reason to go

behind the house of Harbansh and see the occurrence. Another prosecution Witness

Katwaroo was cross-examined on behalf of the accused with a view to show that Sheikh

Nazir Hassan could obtain arus leaves from a place near his house than the place behind the

house of Harbansh Singh. This cross-examination was against the law because no evidence

could be produced by the accused to contradict the evidence of Sheik Nazir Hassan about the

reason for his being at the place of occurrence at the time when it took place. Obtaining

matter through ,cross-examination of another witness is same as obtaining it from

examination-in-chief of one's own witness. The evidence was not relevant to the issue.

Whether arus leaves could be found at another place or not was not a matter relevant to the

issue and so the evidence was inadmissible.

It should be borne in mind that there is a vast difference between offering witness to show

that a witness was not at relevant place, at relevant time and of giving evidence to the effect

that there was no reason for the witness to be at particular place, at a particular time. The

former is material for the decision of issue and so is admissible and the latter is not material

for the decision of the issue and so is not admissible. In the present case evidence could have

been offered to the effect that at the time when murder was being committed at the house of

18 AIR 1952 All 289

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Harbansh Singh, Nazir Hassan was at a place away from the place of occurrence and thus

could not see the occurrence.

Exclusion of evidence

Where a fact which is relevant as having a direct bearing on the issue is denied by a witness,

it may of course be proved aliunde, and his answer may thus be contradicted by independent

evidence. So, the statement of a witness for the defense that a witness for the prosecution

was at a particular place at a particular time, and consequently could not there have been at

another place, where the latter states he was and saw the accused person, is properly

admissible in evidence, even though the witness for the prosecution may not himself have

been cross-examined on the points. Thus, where the prosecution witness stated that he

happened to see the occurrence which took place at 8.45 pm when he was returning home

after attending a meeting of the temple committee, and the accused plea was that the meeting

was continuing even at 8.45 pm and since the prosecution witness was attending the meeting,

he had no occasion to witness the incident, the evidence of the secretary of the committee to

prove minutes of the meeting was held relevant and admissible. But evidence to contradict a

witness as to the reasons for his being at the place of occurrence at the time when it took

place is not admissible, as the evidence is not on a matter relevant to issue. If a question in

cross-examination affects only the credit of the witness and is not relevant to the matters

actually in issue, the witness's answer cannot be contradicted by other evidence except in

certain exceptional cases. Where the fact inquired after is only collaterally relevant to the

issue (as in the case with the character of the witness), the counsel must be content with the

answer which the witness chooses to give him. If he denies the imputation, the answer is

conclusive for the purposes of the suit and the matter cannot be carried further at the trial

except in the two cases provided by this section, which however, does not appear to be very

accurately expressed, as there is at least one other common case where the witness may be

contradicted19. The only redress which a party has, is to charge the witness with giving false

evidence, and to try him for it. To this general rule there are, however, as already observed,

two exceptions contained in the above section and taken from English law. Unless the case

falls under these two exceptions, the answers of the witness to questions tending to shake his

credit cannot be contradicted.

19 Refer section 155

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With regard to adducing of contradictory evidence, the Supreme Court20 observed thus:

“The other reason to disbelieve her evidence is that if PW 11 had seen the murder she would

have cried out or shouted. This is what the High Court had said about that aspect: She claims

to have remained calm like a stone in the house. This unnatural conduct of Sharadamma

makes her evidence highly suspect and incredible. Would she not have at least told the

neighbours that a girl had been murdered in a room of her house and that the accused, if he

really had done so, had murdered the girl in the room? This passive conduct of hers makes

her evidence highly suspect.

Criminal courts should not expect a set reaction from any eyewitness on seeing an incident

like murder. If five persons witness one incident there could be five different types of

reactions from each of them. It is neither a tutored impact nor a structured reaction which the

eyewitness can make. It is fallacious to suggest that PW 11 would have done this or that on

seeing the incident. Unless the reaction demonstrated by an eyewitness is so improbable or so

inconceivable from any human being pitted in such a situation it is unfair to dub his reactions

as unnatural.

The basic requirement for adducing such contradictory evidence is that the witness whose

impartiality is sought to be contradicted with the help of such evidence, should have been

asked about it and he should have denied it. Without adopting such a preliminary recourse it

would be meaningless, if not unfair, to bring in a new witness to speak something fresh about

a witness already examined.

The rule limiting the right to call evidence to contradict witnesses on collateral questions

excludes all evidence of facts which are incapable of affording any reasonable presumption

or inference as to the principal matter in dispute; the test being whether the fact is one which

the party proposing to contradict would have been allowed himself to prove in evidence.

Exception 1

Under the first exception of the section if a witness denies that he has been previously

convicted his previous conviction may be proved to refute it. The proper proof of previous

conviction is the production of copy of the order of conviction issued and certified under the

hand of the officer having the custody of the record of the court in which such conviction was

20 Rana Pratap v. State of Haryana, (1983 )3 SCC 327

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had or of a certificate signed by the officer-in-charge of the jail in which the punishment or

any part of it was inflicted. The case is of Kamal Kanto Das V. State,21 When a witness in his

cross-examination was not asked that he was convicted rather it was asked that he was

implicated the certain cases or that he was under police surveillance or that he was an active

criminal and he denies, no evidence to contradict him is admissible.

Section 298 Cr PC 1973, declares the manner in which the previous conviction may be

proved in an inquiry, trial or other proceeding under that Code.

Exception 2

It lays down that if a witness is asked a question showing that he is not impartial and if he

denied that, evidence may be given to prove his impartiality. A party may call evidence to

show that a witness on the other side has given his evidence in a particular case from some

corrupt or indecent motive, as bribery, malice or revenge: or has given it under influence of

some bias in favour of, or against, one of the parties whereby suspicion is cast on the honesty

of his evidence.

The distinction made between cases coming within the section and those within the second

exception is exemplified in case of R V. Yewin22, where a person named Yewin was indicted

for stealing wheat. The principal witness against him was his apprentice, a boy Thomas. The

judge allowed the prisoner's counsel to ask Thomas, in cross examination, whether he had not

been charged with robbing his master, and whether he had not afterwards said he would be

revenged on him and would soon fix him in Monmouth. He denied both. The prisoner's

counsel then proposed to prove that he had been charged with robbing his master and had

spoken the words imputed to him. The court ruled that his answer must be taken as to the

former, but that as the words were material to the guilt or innocence of the prisoner, evidence

might be adduced that they were spoken by the witness.

Questions Impeaching Credit

There is a difference between impeaching the impartiality of a witness and impeaching his

credit. If a witness is asked any question tending to impeach his impartiality and answers it

by denying the facts suggested, he may be contradicted; but, if he is questioned about his

21 AIR 1959 Cal 34222 (1811)2 Camp 638n

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character only with the object of shaking his credit, no evidence to contradict him would be

admissible, unless his evidence can be brought within either of the two exceptions mentioned

in this section.

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Section 155

Impeaching credit of witness:

The credit of a witness may be impeached in the following ways by the

adverse party, or with the consent of the Court, by the party who calls

him:—

(1) By the evidence of persons who testify that they, from their

knowledge of the witness believe him to be unworthy of credit;

(2) By proof that the witness has been bribed, or has accepted the offer

of a bribe, or has received any other corrupt inducement to give his

evidence;

(3) By proof of former statements inconsistent with any part of his

evidence which is liable to be contradicted;

Explanation:

A witness declaring another witness to be unworthy of credit may not,

upon his examination-in-chief, give reasons for his belief, but he may be

asked his reasons in cross-examination, and the answers which he gives

cannot be contradicted, though, if they are false, he may afterwards be

charged with giving false evidence.

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Scope:

Section 155 prescribes manner of impeaching the credit of a witness. Section 155 lays down a

different method of discrediting a witness by allowing independent evidence to be led. The

credit of a witness is generally impeached by the opposite party. But when the witness has

become hostile, his credit may be impeached, with the permission of the court, by the very

party who has called him. Impeaching the credit of a witness means exposing his real

character to the court so that the court may not trust him. The ways in which the credit of a

witness may be impeached are indicated in section 155. This section permits the following

methods for the purpose.

Clause 1- Unworthy of Credit

Independent evidence may be given that a witness examined by the opponent bears such a

general reputation for untruthfulness that he is unworthy of credit. Such a witness must have

personal knowledge of the witness. The credit of the witness was sought to be questioned by

showing that he disclosed the fact of the rape which he witnessed not immediately but the

next day23. The court cited the following from a judgment of the Supreme Court24.

“ A person who witnesses a murder reacts in his own way. Some are stunned, become

speechless and stand rotted to the spot. Some become hysteric and start wailing. Some start

shouting for help. Others run away to keep themselves as far removed from the spot as

possible. Yet others rush to the rescue of the victim, even going to the extent of counter

attacking the assailants. Everyone reacts in his own special way. There is no set rule of

natural reaction. To discard the evidence of a witness on the ground that he did not react in a

particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”

Clause 2- Corrupt Inducement

Independent evidence may be given to prove that the witness has been bribed or has accepted

the offer of a bribe. Such a witness is not an independent witness but is one who has been

23 Mukhera Reddi v.State of A.P, 199224 Rana Pratap v. State of Haryana

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hired. He is often known as pocket witness. if this fact is proved, the witness completely loses

his credit. But it should be remembered that witness in question has been merely offered a

bribe, no inference of any sort as to the testimony of the witness can be drawn. But the

demand of bribe by the witness should be proved.

Clause 3- Former Inconsistent statements

Credit of a witness may be impeached by showing earlier statements of the witness which

contradict his present statements. It has been heldby the supreme court that previous

contradictory statements of a witness can be used to discredit only his testimony and not that

of other witnesses. Further, it is necessary that before evidence can be led of inconsistent

statements , the witness themselves should be called and have the statements put to them , so

that they can say whether they had made the statements and ,if so , in what circumstances. If

a witness disowns any statement which is inconsistent with any part of his statements made

earlier , he can be contradicted by calling the attention to those parts of the statements which

are used to be used for contradicting him. Merely asking questions in cross-examination with

refrence to such statements would not serve any purpose.

In the case of Mukhera Reddi v. State of A.P25 , The opinion of an expert witness(medical)

that lacration in the vagina of the victim was caused by violent intercourse was sought to be

contradicted by statement of the expert in the witness in cross-examination that lacration

could because without intercourse also. The court held this not to be such a contradiction as

would annihilate the testimony of the witness in the context of the facts of the case which

otherwise has sufficient evidence to support the charge of rape.

In another case of Kehar Singh v. State (Delhi Administration)26 ,It was held by Supreme

Court that statement made by a witness before the commission constituted under the

commission enquiries act cannot be used to subject the witness to any civil or criminal

proceedings nor can it be used against him in any civil or criminal proceedings, the exception

being that he can be prosecuted for giving false evidence. The statement to contradict him or

impeach his credit is not permissible.

25 AIR 199226 AIR 1988

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Also in the case of Sita Ram and another V. State of Punjab,27 it was noted in high court of

Punjab And Haryana that:“The credit of a witness can be impeached by proof of any statement which is inconsistent

with any part of his evidence in Court. This principle is delineated in Section 155 (3) of the

Evidence Act and it must be borne in mind when reading Section 145 which consists of two

limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as

to the previous statement made by him without such writing being shown to him. But the

second limb provides that "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." There is thus a distinction between the two vivid limbs,

though subtle it may be. The first limb does not envisage impeaching the credit of a witness,

but it merely enables the opposite party to cross- examine the witness with reference to the

previous statements made by him. He may at that stage succeed in eliciting materials to his

benefit through such cross-examination even without resorting to the procedure laid down in

the second limb. But if the witness disowns having made any statement which is inconsistent

with his present stand his testimony in Court on that score would not be vitiated until the

crossexaminer proceeds to comply with the procedure prescribed in the second limb of

Section 145.

If a previous statement is not put to a witness as per Section 145 of the Evidence Act the

evidence of such a witness cannot be rejected for impeaching the proof of any statement. As

per Section 155 (3) the accused must make a proper application for summoning such record

under Section 91 Cr.P.C. read with Section 145 of the Evidence Act.”

Clause 4- immoral character of prosecutrix for

rape

In trials to rape or attempt to ravish commit the crime the evidence that she is a reputed

prostitute can be given for it goes long way in raising an inference that she yielded willingly.

When the prosecutrix is being subjected to long and harassing cross-examination, the

supreme court has advised the courts not to sit as silent spectator to the harassment. The

courts must safeguard the honour of the prosecutrix otherwise women victim of crimes would

27 Crl. Misc. No. M-27517 of 2012

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be compelled to reconcile with the stroke of luck and go on tolerating vicious attacks,

violently outside the court and embarrassingly inside the court. Unbridled questioning may

cause nervousness. She may feel isolated among strangers with nobody to save her. The court

should be astute to see that such cross-examination is not abusedor unnecessarily extended.

A witness who expresses the opinion to the court that another witness is unworthy of credit ,

shall not state the reasons for his opinion in the examination-in-chief. But he may be called

upon to explain his reasons in cross-examination. Whatever reasonshe may give shall not be

contradicted, but if the answer is false , he may proceed for giving false evidence.

Is witnessed to be cross-examined?

As seen before under section 145, evidence act, if a witness intended to be contradicted with

his previous statement in writing, the attention of the witness must be drawn to it. Though

under the terms of the present section, it is not necessary to cross-examine and confront the

witness by previous oral statement, before it can be proved, yet It is both usual and advisable

and just to the witness to first interrogate him just to give him opportunity to explain if he

can.28

Tape-recording

Tape recording is admissible under section 155 sub clause(3) to impeach thecredit of the

witness. Before Tape recorded statement can be reiled upon the time and place and accuracy

has to be proved.

28 Stephen Sereverante v. The King

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Section 153 and 146 and 155

Section 146 deals with questions which may be put to the witness in addition to the question

that may be put to a witness under Sections 138 to 145 of. the Evidence Act. Thus Section

146 deals with questions lawful in cross-examination and particular clause (1) thereof

provides for a witness being cross-examined by the question put to him which tend to test his

veracity. Section 153 generally deals with exclusion of evidence to contradict answers to

questions testing veracity, but exception (2) states that if a witness is asked any question

tending to impeach his impartiality and answers it by denying the facts suggested, he may be

contradicted.

it cannot be said that Section 145 must be read with Section 153. Section 146 (3) provides

that a witness may be asked any question which tends to shake his credit by injuring his

character. The main Section 153 seems to have been meant to control Section 146 (3) and it

seems to come into play when a question has been put under Section 146 (3). Section 153

provides that when a witness has been asked to answer any question which is relevant under

enquiry only insofar as it tends to shake his credit by injuring his character, no evidence shall

be given to contradict him. Thus, it is clear that clause (3) of Section 145 have to be read and

must be controlled by the main Section 153 but clause (1) of Section 145 and exception (2) to

Section 153 deal with different aspects. Under Section 146 (1) questions may be put to a

witness in cross-examination to test his veracity and, under exception (2) of Section 153 a

witness may be contradicted when the denies any question tending to impeach his

impartiality.

Sections 153 and 155 must be strictly construed and narrowly interpreted, if the courts

governed by the statute are to be spared, the task in many suits of prosecuting, on most

imperfect material, issues which have no bearing upon that really in contest between the

parties. A party may not, in general, impeach the credit of his opponent's witnesses by calling

witnesses to contradict him on collateral matters, and his answers thereon will be conclusive.

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Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri  

Facts of the case:

The petitioners filed an election petition under the Presidential and Vice Presidential Election

Act, 1952 and according to them undue influence was exercised by the publication and,

distribution of certain pamphlets containing scurrilous attacks on the defeated presidential

candidate. The name of persons who were alleged to have distributed the pamphlets were

mentioned in the particulars supplied in the election petition. When one of them was in the

witness-box as a witness for the returned candidate, he denied in his chief-examination that

he distributed the pamphlets. When it was suggested to him in cross- examination that he

attempted to dissuade one of the petitioners from filing the election petition as otherwise

serious consequences would follow, the witness denied the suggestion. A tape recorded

conversation between the witness and the petitioners was sought to be given in evidence by

playing the tape-record to impeach the credit of the witness.

Issue covered in this project

Issues were framed whether the respondent, or any person with his connivance, printed,

published and distributed pamphlets and other matters connected therewith. In chief-

examination, Jagat Narain, the witness, has stated that he has never seen either of these

pamphlets being distributed and that he has seen them only in Court, on the day when he was

giving evidence. He has also stated that he never received the pamphlets at salt. He has

further reiterated that he has not distributed the pamphlet as spoken by some of the witnesses

on the side of the petitioners and he has further affirmed that he has never distributed the

pamphlets in the Central Hall of Parliament and that he has not seen the pamphlets except in

Court. In cross-examination, the witness was asked about the telephone call that he had made

to Abdul Ghani Dar(the petitioner in this case) about 6 or 7 days before the filing of the

election petition; and suggestions here made that the witness attempted to dissuade Abdul

Ghani Dar from filling the election petition on the ground that serious consequences would

follow from such action. Though the witness admitted that he had a telephone talk with

Abdul Ghani Dar, he denied various other suggestions put to him regarding the nature of the

talk that took place between him and Abdul Ghani Dar. It was at that stage that the counsel

for the election petitioner wanted the tape recording of the talk that took place between Abdul

Ghani Dar and the witness to be adduced as evidence on the ground that the answers given by

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the witness in Court were quite contrary to the nature of the conversation that he had with

Abdul Ghani Dar. Objection was raised to receiving the same as evidence.

Contention of the respondent

The learned counsel for the respondent, raised two contentions regarding the admissibility of

the tape-recorded conversation between the witness and petitioner : (1) The tape-recorded

conversation cannot be admitted in evidence for contradicting the evidence of the witness;

and (2) Under S. 155 (3) any former statement before it could be put in evidence to impeach

the credit of a witness, the Court must be satisfied that the previous statement is relevant to

the matter in issue and the tape recorded conversation, in his case, has no relevance to the

matters which are in issue in these proceedings. According, to him, in cases referred by the

court, tape recorded conversations were admitted in evidence to corroborate the evidence

given by a witness before the Court, and not. to contradict his evidence.

What Was Held?

On the question of the admissibility of the evidence, it was held that

(1) A previous statement made by a person and recorded on tape, can be used not only to

corroborate the evidence given by the witness in court but also to contradict his evidence

given before the Court, as well as to test the veracity of the witness and also to impeach his

impartiality. Apart from being used for corroboration, the evidence is admissible in respect of

the other three matters under section. 146(1), 153, Exception (2) and s. 155(3) of the

Evidence Act. If a previous statement made by a person can be used to corroborate his

evidence given before court, on principle, there is no reason why such previous statement

cannot 'be used to contradict under s. 153, Exception 2 and also for the other purposes under

ss. 146(1) and, 155(3).

(2) The expression 'which is liable to be contradicted in section 155(3) does not mean which

is relevant to the issue. But even if it mean 'relevant to the issue' the tape recorded statement

in the present case, is relevant to the issue before this Court, namely, whether the respondent,

or any person with his connivance, printed, published and distributed the pamphlets.

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bibliography

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