Report No. 185
It refers to 'cross-examination as to previous statements in writing'. It reads as follows:
"145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but 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."
Section 155(3) deals with 'impeaching the credit of a witness' by "proof of former statements inconsistent with any part of his evidence which is liable to be contradicted". The difference is that under Section 155(3) the previous statement can be oral and need not be in writing or reduced to writing. But Section 155(3) relates only to impeaching credit of the witness. This Section is one of the most important Sections in the Evidence Act. This Section applies both to civil and criminal cases. Before we proceed further, we shall refer to a few judgments of the Supreme Court and Privy Council, some decided before 1977 (when the 69th Report was given) and some decided later.
In Balgangadhar Tilak v. Srinivasa: AIR 1915 PC 7, it was observed that before proof is given to contradict a witness, he must be told about the circumstances of the supposed statement and he must be asked whether or not he has made such a statement. This is an essential step, the omission of which contravenes not only general principles but the specific provisions of Section 145. The case related to an adoption and the previous statements were those given in an earlier criminal case which were whole-sale imported into the subsequent civil case without the statements being put to the witnesses. Lord Shaw observed:
"Mr. Tilak was for five days under cross-examination before the Subordinate Judge; but not one of these things was put to him; and he was not asked in the witness-box to give one single explanation with regard to any of these expressions or omissions which are now alleged to compromise him."
The observations were approved in Tara Singh v. State (AIR 1951 SC 441) by the Supreme Court. That case related to statements made under Section 288 of the old Criminal Procedure Code in the Committal Court. The previous testimony could be used as substantive evidence only if the witness was contradicted as provided in Section 145. The same views were expressed in Bhagwan Singh v. State of Punjab, AIR 1952 SC 214; Chittaranjan Das v. State of W.B., AIR 1963 SC 1696.
The above principles have been applied in a larger number of cases. See Narayanan v. State of Kerala, 1994(5) SCC 728; Malkait Singh v. State of Punjab, 1994(4) SCC 341; State of UP v. Pubal Nath, 1994 (6) SCC 29; Surjit Singh v. State of Punjab, 1993 Suppl. (1) SCC 208; Onkar Namdeo Jadhav v. Second Addl. Sessions Judge, 1996(7) SCC 498; Binay Singh v. State of Bihar, 1997 (1) SCC 283; Nathew Yadav v. State of Bihar, 1997 SC 1808; State of Rajasthan v. Teja Ram, 1999 (3) SCC 507; Bhaosar v. Sadiq, 1993 (3) SCC 95; Babu Singh v. State of Punjab, 1996 (8) SC 699.
Only those passages in the previous statements should be proved, which clearly contradict some portion of the testimony of the witness before the Court. The whole of the previous statement cannot be put in without marking the particular passages: Kehar Singh v. State, AIR 1988 SC 1883.
We shall now refer to three crucial issues concerning Section 145 which were considered in the 69th Report (see para 81.15). These are:
(a)(i) Is the Section applicable to oral statements?
(ii) In particular, is the Section applicable to tape-recorded statements?
(b) What is the position regarding documents which are lost?
We shall elaborate these issues:
(a)(i) Is the Section applicable to oral statements? This Section and Section 155(3):
We have already stated that Section 155(3) which refers to previous statements being used to impeach the credit of a witness if they are inconsistent with his present evidence. That Section does not speak of 'statement in writing or reduced to writing', whereas Section 145 permits a previous statement to be used, upon contradicting the witness, as substantive evidence only if it is in writing or has been reduced to writing. In other words, on the language as it stands now, Section 145 does not apply to 'oral statements' made earlier and such statements cannot be used for contradiction except under Section 155(3).
In this context, reference has to be made to secs. 4 and 5 of the (UK) Criminal Evidence Act, 1865 (Lord Denman's Act). These provisions of the said Act are elaborately discussed in Phipson (Evidence, 1999, 15th Ed, paras 11.29 to 11.31). Section 4 refers to mode of proof of previous inconsistent statement, (i.e. may be oral or written) while Section 5 deals with crossexamination on a previous inconsistent written statement.
So far as previous written statement is concerned, Section 5 of the (UK) Criminal Procedure Act, 1865 states as follows:
"Section 5 A witness may be cross-examined as to previous statements made by him in writing, or reduced to into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: provided always that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit."
So far as previous oral statement is concerned, Section 4 of the same Act stated as follows:
"Section 4 If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement."
The use of the words 'indictment' or 'proceeding' in both secs. 4 and 5 show that the provisions are applicable to criminal and civil proceedings alike.
The Orissa High Court, while dealing with Section 145, held that the principle of Section 145 is applicable also to previous oral statements. (State v. Minaketan, AIR 1952 Orissa 207). But, the Rajasthan High Court in Ram Ratan v. The State, AIR 1956 Raj 196 took the view that Section 145 cannot be applied to contradict earlier oral statements. In para 81.21 of the 69th Report, it was stated that justice requires that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradiction, whether the statement be written or oral.
It was also pointed out that in Sri Lanka, a separate subSection has been added in Section 145 on the lines of Section 4 of the UK Act of 1865. Section 54 of the Evidence Act, (1898-1954) of New South Wales also contains such a provision.
(a)(ii) So far as prior tape recorded statement is concerned, for purposes of another Section, viz., Section 155(3), which refers to impeachment of credit, (which does not state that the prior statement must be in writing.- it has been accepted by the Supreme Court in Pratap Singh v. State, AIR 1964 SC 72 and in Rama Reddy v. V.V. Giri, 1970 (2) SCC 340 that Section 155(3) applies to statements which are tape recorded, if there is no proof of tampering. The Supreme Court approved the judgment of Bhandari CJ in Rupchand v. Mahabir, AIR 1956 Punjab 173.
In Rupchand's case, the Punjab High Court while it held that the taped statement could be used for impeaching the credit of the witness under Section 155(3), it held that the tape could not be used for purposes of Section 145. The reason given was that the tape record cannot be equated as a statement in writing or reduced to writing.
In the 69th Report, it was opined that this view of the Punjab High Court is correct and that therefore, the Section 145 should be amended to include a "statement recorded mechanically".
It is true that the Information and Technology Act, 2000, the definition of 'Evidence' in Section 3 has been amended and clause 2 of Section 3 states that Evidence includes all documents (including electronic records) produced in the Court. But, in our view, it would be advantageous to add the words 'statement recorded mechanically or by electronic record'.
(b) The next question is as to what should happen if the document containing the earlier statement is lost.
Phipson (15th Ed, 1999, para 11.31) states as follows: "Where a document is lost or destroyed or filed in another Court, secondary evidence will be admissible; and proof may be given that it is in the hands of the opponent, who has had notice to produce it, but has refused."
Sarkar (Evidence, 15th Ed, 1999, p. 2222) states (quoting Taylor Section 1447, Ros N.P. 180 and Halsbury, 3rd Ed, vol. 15, para 808) as follows:
"The Evidence Act says nothing as to whether a copy can be used instead of original where the document has been lost or destroyed or for any other reasons not forthcoming. The following is the English 451 procedure. If it should appear from the cross-examination of the witness, or from any antecedent evidence, that the writing in question has been lost or destroyed, the provision that the judge may require its production, wIllustration of course, become inoperative.
It is apprehended that in such cases, the witness might be cross-examined as to the contents of the paper, notwithstanding its non-production; and that if it were material to the issue, he might be afterwards contradicted by secondary evidence. Still the question remains, as to whether the cross-examining party might first interpose evidence out of turn, to prove the loss or destruction of the document or to show that it is in the hands of the opponent, that he had notice to produce it, and that he refused to do so; and might then cross-examine the witness as to its contents."
In the 69th Report, after referring to Taylor Evidence (para 1447 cited by Woodroffe), it was observed as follows: "We are of the view that a sutiable provision regulating the contradictions of the witness by secondary evidence should be inserted. A case for secondary evidence must, of course, be made out before it can be used for contradiction."
The result of the foregoing discussion is that
(a)(i) a separate subSection must be inserted in Section 145 to permit contradiction by using earlier oral statements so that such contradictions could be treated as substantive evidence;
(a)(ii) there is no need to make a specific provision for tape-recording or for evidence recorded mechanically or by electronic record, because of the amendment of definition of 'Evidence' in Section 3;
(b) provision to be made to prove the prior statement by secondary evidence if the original is lost or cannot be found or is with the opposite party, provided that first evidence is adduced by the party cross-examining, laying such foundation for adducing secondary evidence. So far as this aspect is concerned, in para 81.25, the 69th report stated that this aspect is perhaps covered by Section 155(3) so far as the use of secondary evidence.
The report also said that the applicability of Section 145 is doubtful. They therefore did not include this aspect in their sub Sections (2) and (3) as drafted. We agree with para 81.27 of the 69th Report that the following two subSections be added, after designating the existing Section as subSection (1). (We also substitute the words "can be given" in subSection (2) by the words "is used").
Thus, we agree with the recommendation in para 81.27 of the 69th report that the following subSections (2) and (3) be added after renumbering the existing provisions of Section 145 as subSection (1):
"(2) Where a witness is sought to be contradicted by his previous statement in writing by a party entitled to produce secondary evidence of the writing in the circumstances of the case, his attention must, before such secondary evidence can be given for the purpose of contradicting him, be called to so much of it as is to be used for the purpose of contradicting him.
(3) If a witness, upon cross-examination as to a previous oral statement (including a statement recorded by mechanical process or through electronic means) made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and where such a statement is inconsistent with his present evidence, denies that he made the statement or does not distinctly admit that he made such statement, proof may be given that he did in fact make it, but before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he made such statement."