Report No. 69

Chapter 81

Contradiction of Witnesses

Section 145

I. Introductory

81.1. For understanding the significance of section 145, some discussion is needed about the purposes of cross-examination. One of the purposes of cross-examination is to impeach the credibility of a witness.1 One method of impeaching credibility is contradiction of the witness by his previous inconsistent statements. This mode of contradiction finds an express mention in section 155(3). The procedure in that regard is dealt with in section 145, so far as written statements are concerned. The use of this section, then, is for impeaching the credibility of a witness by contradiction.

1. See discussion as to section 138, supra.

81.2. Credibility-its wide scope.-

The credibility of a witness can be impeached by direct attacks upon the character of witnesses to discover intentional falsification. But much more is involved.1 Everything relating to a witness which discloses the probability of inaccuracy or error in his testimony2 is a ground for challenging his credibility. Therefore, the testing of credibility is directed to the diversified factors which enable the triers of fact intelligently to estimate the value of the testimony by judging the quality of the witness and his opportunity to know the facts. For example, the mental deficiencies of a witness are considered in determining his credibility.3 Professor Weiohen has, in an able article showing the greater need for expert psychiatrists, stated:

"That the court has found the witness to possess minimal degree of capacity to testify should not foreclose a showing that because of mental defect or disorder, his testimony is so untrustworthy that it should be given little weight. Some disordered persons, such as the psychopathic liar, may be so convincing that they can easily pass the test of competency; but it would be unjust to deny the other party the opportunity to show the existence of the condition and its effect upon reliability of testimony. Because modern practice admits, as competent to testify, persons proved or conceded to be mentally ill to some degree, a liberal admission policy for evidence on the effect of mental conditions upon credibility is needed."

1. Mason- Ladd Impeachment of Witness, (1967) 52 Cornell LQ 239, 242.

2. Weinstein Some Difficulties in Devising Rules for Determining Truth in Judicial Trials, 66 Col LR 223, cited by Mason Ladd Impeachment of Witness, (1966) 52 Cornell LQ 239, 242.

3. Weiohen, quoted in Mason Ladd Impeachment of Witness, (1967) 52 Cornell LQ 239, 242.

81.3. Element in judging credibility.-

What, then, are the mental conditions that are relevant for judging credibility? These are multifold, and were discussed by Judge Medina in the Communist Conspiracy case.1 He has observed:

"By what yardstick and in accordance with what rules of law are you to judge the credibility of the witness?

This judging of testimony is very like what goes on in real life. People may tell you things which may or may not influence some important decisions on your part. You consider whether the people you deal with had the capacity and the opportunity to observe or be familiar with and to remember the things they tell you about. You consider a person's demeanour, to use a colloquial expression, you "size him up" when he tells you anything; you decide whether he strikes you as fair and candid or not. Then you consider the inherent believability of what he says, whether is accords with your own knowledge or experience. It is the same thing with witnesses. You ask yourself if they know what they are talking about."

You watch them on the stand as they testify and note their demeanour. You decide how their testimony strikes you."

1. United States v. Foster, 9 FRD 367 (388-90) (SONY 1949) cited by Mason Ladd Impeachment of Witness, (1967), 52 Cornell LQ 239, 240, footnote 5.

81.4. Wigmore's view.-

Of testing the inherent believability of a witness, one method is contradiction, it may not be inappropriate to note that according to Wigmore,1 the end aimed at by impeaching evidence of this kind is the same as that aimed at by impeaching evidence of specific error, namely, to show the witness to be, in general, capable of making errors in his testimony, for, upon perceiving that the witness has made an erroneous statement upon one point, we are ready to infer that he is capable of making an error upon other points. According to Wigmore, the general end obtained is the same indefinite end obtained by impeachment by specific evidence, that is, some undefined capacity to error which may be a moral disposition to lie, partisan bias, faulty observation, defective recollection or any other quality. No specific defect is indicated, but each and all are hinted at.

The primary object of contradiction is thus to cast a doubt on the strength of the evidence. Contradictory statements are not necessarily put in to show falsehood. That a person contradicts himself does not imply that he is telling the untruth, and even if, in the circumstances, it suggests untruth, it does not imply that there is untruth in every particular narrated by the witness.

The maxim "Falsus in uno, falsus in omnibus," that is, "he who speaks falsely on one point will speak falsely on all" is often cited, but that may not be universally true. The maxim contains in a loose fashion a kernel of truth which no one needs to be told, and is not applicable in all cases. The real value of contradiction lies in its shaking the belief of the Court in the perception and recollection of the witness.

1. Wigmore, para. 1017.

II. Section 145-History and Gist

81.5. Introductory.-

Five sections, namely, sections 138, 140, 145, 148 and 154, are relevant in regard to impeaching the credibility of a witness by cross-examination.1 We have already considered sections 138 and 140. Section 145 may now be considered.

1. Husseinaiah v. Yerraiah, AIR 1954 AP 39 (40), para. 7 (Subba Rao, C.J.).

81.6. Previous statements in writing-whether in court or elsewhere-which are inconsistent with his present evidence, are the subject matter of the section. Wigmore called such inconsistent statements "self-contradictions". The law is that1 prior inconsistent statements can be proved either out of the mouth of the witness himself in cross-examination or, where they relate to facts relevant to the merits of the case, by the extrinsic evidence of other witness or documents.

1. Section 155(3).

81.7. Procedure.-

The procedure in this regard in India in regard to written statements is dealt with in section 145, which incorporates two propositions,-(i) a witness may be cross-examined without showing the previous writing, (ii) if it is intended to contradict him, the writing must be shown to him. We are stating very briefly the gist of the section in order to draw attention to the significance of the section.

81.8. Utility.-

In so far as the section permits cross-examination as to a previous written statement without the writing being shown to him or being proved, the utility of the section is limited. If the witness denies having made any written statement, but later on, on being shown the writing, admits it, that is a reflection on his memory. In so far, however, as the writing is used to contradict him, after following the procedure laid down in the section in the latter half, the utility of the section is far greater, inasmuch as whatever he said in court, if it is contradicted by the writing, loses its value-though, of course, the previous written statement does not thereby become substantive evidence in itself.1-2

1. Melappa v. Guramma, AIR 1956 Born 129.

2. See para. 81.12, infra.

81.9. Queen's case.-

Section 145 partly modifies the rule laid down in Queen's cas.- a rule which, in England, was modified by statute in 1865. A preliminary analysis of what is known as the rule of the Queen's case1is required for a comprehensive undertaking of the use of inconsistent statements for impeachment. In that case-so far as is material-it was held that the witness cannot be cross-examined at all without the writing being shown. The rule of the Queen's case confused2the principles applicable to the best evidence rule with principles applicable to cross-examination concerning the terms of a writing of the witness, when he is being examined about the writing, only for the purpose of discrediting his testimony given in court. Under the best evidence rule, where the writing itself is the subject of inquiry, the proof of the contents of the writing is the document itself. Inquiry through secondary sources as to its content cannot be made until it is shown by acceptable proof that the original document is unavailable.

1. Queen's case, (1820) 2 Br&B 284: 129 Eng Rep 976 (Common Pleas).

2. Mason Ladd Impeachment of Witness, (1967) 52 Cornell LQ 238, 246.

81.10. If, however, the purpose of the examination into the content of the document is to discredit the witness about matters stated therein cross-examination as to whether he wrote it and what he said in it may be a most effective method of determining his credibility, if he denies making the writing or states its content to be something different than in fact it is.

The Queens case held, inter alia, that the writing should be shown to the witness before permitting interrogation upon its content, thus eliminating what may be an effective part of the impeachment. Likewise, in reference to an oral statement made out of court, counsel may, on cross-examination, prefer, for the purpose of impeachment, first to ask the witness what he had said, if anything, rather than confront him initially with the statement. In the situation either of a writing or of an oral statement, if the witness were asked what he said before being confronted with the statement, he might give a different story, thus disclosing his desire to evade the effect of what he had said previously. It is for this reason that, as already stated1 section 145 modifies, in part, the rule in Queen's case.

1. Para. 81.9, supra.