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Report No. 185

Section 155 and proposed Section 155A:

Section 155 deals with 'Impeaching credit of witness'. It reads as follows:

"155. 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 hi.-

(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;

(4) When a man prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of general immoral character. (This clause was deleted by Act 4/2003.)

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."

There are two illustrations below the Section. In Illustration (a), evidence is admissible against a witness (a third party to a suit) who claims to have delivered goods to another person, to state that he had made a similar claim earlier; Illustration (b) evidence may be given that a witness (a third party) who on a previous occasion made a similar claim in another criminal case that the deceased was hit by the same accused. Evidence is admissible under Illustration (a) or (b) of the Evidence Act to contradict him. Both illustrations are referable to clause (3) of Section 155 which deals with 'contradiction' of a witness.

So far as clause (4) of Section 155 is concerned, in the 172nd Report, the Law Commission recommended its deletion. This has been done now by Parliament by Indian Evidence (Amendment) Act, 2002 (Act 4 of 2003).

Woodroffe points out that the credit of a witness can be impeached by following one or other of four methods:

(a) by cross-examination (that is, by eliciting, from the witness himself facts disparaging him);

(b) by calling other witnesses to disprove his testimony on material points (the credit of a witness is indirectly impeached by evidence disproving the facts which he has asserted);

(c) by contradiction on matters affecting credit, through other witness;

(d) by independent proof given by other witnesses as to character.

Section 155 deals with methods (c) and (d).

Section 155 deals with a subject different from what secs. 52, 146 or secs. 138, 140, 145, 148 deal with. Section 155 deals with the character of witnesses and prosecutrix. Section 52 deals with character evidence in regard to the subject matter of the suit. Secs. 138, 140, 145, 146 and 154 provide for impeaching the credit of a witness by cross-examination. In particular, Section 146 permits questions injuring the character of a witness to be put to him in cross-examination. Section 155 lays down a different method of discrediting a witnes.- by allowing even independent evidence to be adduced.

(1) Clause (1) of Section 155: In the 69th Report, it was suggested (see paras 87.11 and 87.24) that clause (1) of Section 155 should be amended, as a matter of clarification, by using the words, "impeach his credibility, or veracity" instead of "believe him to be unworthy of credit".

We agree with this recommendation.

(2) Clause (2) of Section 155: In para 87.12 of the 69th Report, it was stated that no amendment is necessary in regard to this clause. We agree.

(3) Clause (3) of Section 155: So far as this clause is concerned, two recommendations were made in the 69th Report:

(a) One was that, for procedural purposes, it must be made clear that as per the decision of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit, AIR 1915 PC 7, the previous contradictory statement must be put to him. In other words, it must be made clear that clause (3) of Section 155 is subject to Section 145.

(b) The second recommendation concerns the words 'his evidence which is liable to be contradicted'. These words have been interpreted differently in different cases.

Sarkar (15th Ed, 1999, p. 2267) says:

"Contradiction by previous inconsistent statement must, however, be confined to matters relevant to the issue, as no contradiction is allowed on irrelevant matters, except in the two cases mentioned in Section 153. That the previous inconsistent statement must relate to matters relevant to the issue is borne out by the expression "inconsistent with any part of the evidence which is liable to be contradicted". As pointed by Wilson J, an irrelevant matter requires no contradiction, as it is not admissible in evidence under Section 5.

The expression 'which is liable to be contradicted' in clause (3) of Section 155 is equivalent to "which is relevant to the issue". (Khadija Khanam v. Abdul Kareem, ILR 17 Cal 344). The Supreme Court however, has said that this proposition is too broad and the various clauses in Section 155 do not warrant such an interpretation (Rama Reddy v. V.V. Giri, 1970 (2) SCC 340. The third sub-clause refers to a former statement which is inconsistent with the statement made by the witness in evidence in the case and it is permissible that the witness be contradicted about that statement (Kehar Singh v. State, AIR 1988 SC 1883)."

We shall refer to a few Supreme Court judgments in connection with Section 155. Where a statement was said to be made by a witness who declined to affix his thumb impression, the statement could not be used for contradicting the testimony (State v. Harpal, AIR 1978 SC 1530). The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court: Binay Kumar Singh v. State of Bihar, AIR 1997 SC 322.

Previous inconsistent statement recorded on tape recorder is admissible for contradiction. See Rama Reddy v. V.V. Giri, 1970 (2) SCC 340 approving Rupchand v. Mahabir (AIR 1956 Punjab 173). (We have referred to these cases while dealing with Section 153). But statements recorded on tape can be treated as inadmissible if there is any reason to hold that they may have been tampered with (Pratap v. State, AIR 1964 SC 72). In Yusuf Ali v. State, AIR 1968 SC 147 the prosecution sought to rely upon certain conversation alleged to have taken place between the accused and the complainant which was recorded on a tape recorder. It was held that the conversation did not attract the applicability of Section 162, Code of Criminal Procedure and was admissible.

It is well-settled that unless a First Information Report can be tendered in evidence under any provision in Chapter II of the Act, such as Section 32(1) or Section 8, it can ordinarily be used only for the purpose of corroborating, contradicting or discrediting (under secs. 157, 145 and 155) its author, if examined, and not any other witness (Shankar v. State, AIR 1975 SC 757).

The statement of law as laid down by Wilson J in Khadija v. Abdul, ILR 17 Cal 344, has not been accepted, as stated above, by the Supreme Court in Rama Reddy v. V.V. Giri. Further, Cunningham has raised the query whether these words do not refer to any part of the evidence which relates to a fact in issue or relevant fact, or which falls within the exceptions to Section 153. The latter interpretation is correct (see para 87.13 of 69th Report) and Sarkar (ibid) p. 2267 already referred to).

Therefore, it is necessary to clarify clause (3) of Section 155 by further adding, after the words 'liable to be contradicted' the following words:

"that is to say, evidence on a fact in issue or a relevant fact or evidence relating to any matter referred to in the First or Second Exception to Section 153."

Further, we recommend the addition of the following words in the beginning of clause (3) :-

"Subject to the provisions of Section 145"

We recommend accordingly.

(4) Clause (4) of Section 155: We reiterate the recommendation in the 172nd Report for deletion of this clause. But now the said recommendation 492 has been carried out by Indian Evidence (Amendment) Act, 2002 (Act 4 of 2003).

(5) A further question remains as to the position of an accused. Sarkar (ibid p. 2274) considers this aspect separately.

While dealing with Section 155 which deals with 'impeaching the credit of a witness', as in the case of Section 14.- which gives discretion to the Court to intervene, when in cross-examination, questions can be put to affect the credit of a witness by injuring his characte.-, we have to consider whether some control must be provided when the credit of an accused is impeached.

So far as Section 155 is concerned, two situations arise. If an accused volunteers to give evidence under Section 315 of the Criminal Procedure Code, 1973 he can be cross-examined like any other witness and cannot claim the protection against self incrimination as under cl. (b) of Article 20 of the Constitution. But, he still requires some protectio.- when his credit is impeache.- as in the case of other witnesses. We have already recommended Section 148A (instead of Section 148(2) to protect the witnes.- accused by conferring powers on the Court).

Under Section 155, there is no need to make another provision so far as the witness-accused is concerned, in respect of questions that may be put to him in cross-examination. Section 148A is in our view sufficient.

The 69th Report considered the question, in the context of clause (3) of sec.155 which permits independent evidence. This aspect was considered in para 87.23 of the 69th Report. It said:

"We have disposed of the four clauses of Section 155 as it now stands. It remains to consider one point which does not concern any particular clause of the Section, but is relevant to the entire Section. This point arises because since Section 155 speaks of impeaching the credit of a 'witness'. Literally, it may become applicable also to the accused who offers himself as a witness.

So far as cross examination of the accused on matters in issue is concerned, the matter will be taken care by the relevant earlier Sections, in regard to which we have made suitable recommendations for dealing with the problem of the accused as a witness. The question how far the accused's character can be attacked under 155, by independent evidence, however, still remains since it falls outside Sections 132 and 148."

The problem posed is that in the case of an accused who offers to be a witness under Section 315 of the Code of Criminal Procedure, 1973, his credibility can be impeached by

(1) cross-examining him or

(2) cross-examining other witnesses who are examined by the accused".

Even though, the accused loses protection under Article 20(3) of the Constitution, vis-à-vis the charge in issue in the Criminal proceeding, when he is asked questions relating to other offences not in issue in the criminal case concerned, protection is necessary so far as other offences are concerned under cl. (3) of Article 20. It is here that we have already provided protection under Section 148A (instead of Section 148(2) as proposed in the 69th Report). In fact we added the additional principle in DPP v. P : 1991(2) AC 447 both in Section 148 and 148A.

(6) Now what remains for consideration is the protection of the accused in respect of other offences not in issue in the case but where, his witnesses are questioned about other offences committed by the accused. This is not covered by Section 132 and 148 which deal with the credibility of the witness.

The 69th Report, therefore, further explains in para 87.23 as follows:

"When the credit of an accused-witness is attacked under Section 155, the danger arises that not only his credibility as a witness (in the restricted sense) would be attacked, but also there may be a certain amount of mental harassment and a likelihood of prejudice by such cross-examination, if it is allowed without some qualification.

We have discussed the relevant aspects under Section 148, and stressed the need for special provisions. It seems to us that the best course would be to create, in Section 155 also, a separate provision substantially on the same lines as we have recommended in relation to Section 148 as regards the cross-examination of the accused on matters affecting his credit."

In the last sentence, there appears to be a clear mistake, it should read as 'as regards the cross-examination of any witness other than the accused who is asked questions in cross-examination about the credibility of the accused'. This is clear when we read the recommendation for enacting Section 155(2) (which we recommend to be an independent Section 155A, so that Section 155 does not become very lengthy).

The same sub-clause which we recommend for Section 148A will have to find place in Section 155A. The principle in DPP v. P that the Court must treat the question or answer admissible only if the probable value of the answer is likely to outweigh the prejudice that may be caused to the accused, is added at the end of both Sections 155 and 155A.

In the result, we recommend the following changes in Section 155 as recommended in para 87.24 of the 69th Report. (In the place of Section 155(2), we propose Section 155A.) In both Sections, apart from the protections already there, it is necessary to include the protection as per the new principle in DPP v. P.

Section 155 will apply where the accused has not opted to give evidence under Section 315 of Cr.P.C. Section 155A applies where the accused resorts to Section 315 of the Cr.P.C.

Sri Vepa P. Sarathi has suggested that the proposed Explanation does not fit into clause (1). But the Explanation is intended to clarify what the witness need not say in his chief-examination. This is purely procedural.

We recommend Section 155 should be revised as follows:

"155. Impeaching the credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or with the permission of the Court, by the party who calls him-

(1) by the evidence of persons who, from their knowledge of the witness, could impeach his credibility, or veracity;

(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) subject to the provisions of Section 145, by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted, that is to say, evidence on a fact in issue or a relevant fact or evidence relating to any matter referred to in the First or Second Exception to Section 153; and provided that the Court is satisfied that the probative value of the answer to the question has or would override the prejudicial effect thereof.

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.

Illustrations:

(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B.

Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to B.

The evidence is admissible.

(b) A is indicted for the murder of B. C says that B, when dying, declared that A had given B the would of which he died.

Evidence is offered to show that, on a previous occasion, C said that the would was not given by A or in his presence.

The evidence is admissible."

The other provision, instead of Section 155(2) as recommended, will be Section 155A. (We change the word 'he' in the 69th Report as 'accused'. We omit the case of questioning the prosecutrix as done under Section 155(4)).

"155A. Impeaching the credit of the accused while examining him as a witness.- When an accused person offers himself as a witness in pursuance of Section 315 of the Code of Criminal Procedure, 1973, it shall not be permissible to put questions to another witness and such witness, if asked, shall not be compelled to answer, questions which tend to show that the accused has committed or has been convicted or been charged with any 498 offence other than that in which the accused is charged or that the accused is of bad character, unles.-

(i) the proof that the accused has committed or has been convicted of such other offence is relevant to a matter in issue; or

(ii) the accused has personally or by his legal practitioner asked questions of the witness for the prosecution with a view to establishing his own good character, or has given evidence of his good character; or

(iii) the nature of the conduct of the defence is such as to involve imputations on the character of the witness for the prosecution (other than the character of the prosecutrix) without obtaining the leave of the Court for asking the particular question; or

(iv) the accused has given evidence against any other person charged with the same offence, and the Court is satisfied that the probative value of the answer to the question has or would outweigh the prejudice that may be caused."



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