Report No. 69
II. Section 155(1) to 155(4)
87.5. Section 155(1).-
Of the circumstances which can be tendered in evidence to impeach the credit of a witness under section 155, the first is "the evidence of persons who testify that they, from their knowledge of the witness, believe 'him to be unworthy of credit." This is direct evidence as to the character of a witness. A question that often arises in connection with such evidence of character of a witness is; what kind of immoral character can be imputed to the witness under this head? To make the matter more concrete, the query is thi.- is it necessary that the evidence should relate to some trait of character which may directly affect the "veracity, accuracy or credibility" of the witness; or is it enough if the trait tends to show any defect indicating moral turpitude of any kinds? This question arises because of the wide word "credit" used in the clause. Does it refer only to veracity and allied features or has it a wider connotation?
87.6. Position in England.-
In England, the scope of evidence that can be tendered under the corresponding rule is narrow. Article 146 of Stephen's Digest of the Law of Evidence (12th Edn., page 168) states the position thus1-
"The credit of any witness may be impeached by the opposite party, by the evidence of persons who aware that they, from their knowledge of the witness, believe him to be unworthy of credit upon his Oath. Such persons may not, upon their examination in chief, give reasons for their belief, but they may be asked their reasons in cross-examination, and their answers cannot be contradicted."
The words "credit upon his Oath" in the above formulation are universally understood as confined to veracity.
1. Stephen's Digest, Article 146, cited in R. v. Cunewardene, (1965) 2 All ER 290 (294).
87.7. Medical evidence.-
Although Stephen wrote a hundred years ago, this is substantially the present positio.- with one addition. It would appear that now. In England, medical evidence can be given to show certain facts of a medical nature relating to the credibility of a witness. In Toohey v. Commissioner of Metropolitan Policy, 1965 AC 595: (1965) 1 All ER 506 (FIL), the accused were charged with assaulting a boy of sixteen with intent to rob him. The boy's case was that the accused had demanded money and cigarettes, taken him up an alley and assaulted him in the course of searching him. The accused's defence was that they had found the boy in a state of hysteria exacerbated by drink and were helping him home.
At the trial, the accused wished to call a police surgeon to testify to the fact that the boy was in an hysterical condition when brought to the police station, that he smelt or drink, and that drink was liable to exacerbate hysteria. They were, however, not allowed to do so. The accused were convicted and the conviction was affirmed by the Court of Criminal Appeal. The conviction was, however, quashed by the House of Lords. The surgeon's evidence was relevant to the issue, because it assisted in the resolution of the question whether the alleged assault accounted for the hysteria, or whether the hysteria accounted for the allegation of assault. The primary importance of the decision of the House of Lords is that it sanctions the calling of a witness to impugn the re-liability of an opponent's witness on medical grounds.1
1. Cross Evidence, (1974), p. 238.
87.8. According to the theory of English law, evidence intended to impeach credit should relate to general reputation only and should not express the mere opinion of the impeaching witness.1 It is not sufficient that the impeaching witness should protest merely to state what he has heard "others" say; for those others may be but few. He must be able to state what is generally said of the person by those among whom he dwells, or by those with whom he is chiefly conversant; for, it is this only which constitutes his general reputation. In practice, the question is generally shortened thu.- "from your knowledge of the witness would you believe him on his oath?"2
1. Woodroffe.
2. R. v. Brown, 1 CCR 70.
87.9. Section 155(1)-position in U.S.A.-
As regards the position in the United States, it would appear that in most jurisdictions, at least in a direct attack on the credibility of the witness the evidence used is designed to show the general propensity of the witness who is falsified. "In effect, it is designed to show that the conscience of the witness would not be disturbed if he is falsified."1 "Truth and veracity" are the common tests for impeaching the witness. The Uniform Rules of Evidence limit inquiry to honesty or veracity of the witness. Although, in a few jurisdictions, general moral character is permitted as a means of impeachment, it would appear that the trend now is in the narrower direction, there being a realisation of the dangers of a broader test.2
1. Mason Ladd Impeachment of Witnesses, (1966-67) 52 Cornell LQ 239, 241.
2. Mason Ladd Impeachment of Witnesses, (1966-67) 52 Cornell LQ 239, 241, f. n. 7.
87.10. Position in U.S.A.-
In California, for example, the sphere of admissibility under this head is somewhat narrow. The California Evidence Code1 provides, so far as is material, as follows:
"Section 787. Specific instances of conduc.- Subject to section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.
Section 788. Prior felony conviction-For the purpose of attacking the credibility of a witness it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless2:
(a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.
(b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with section 4852.01) of Title 6 of Part 3 of the Penal Code.
(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offence.
(d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to procedure substantially equivalent to that referred to in subdivision (b) or (c)."
1. Sections 787 and 788, California Evidence Code.
2. Emphasis, supplied.
87.11. Need for clarifying the scope of clause (1).-
It seems to us on a consideration of the merits of the subject that it would be desirable to clarify the scope of clause (1) and that it should be confined to attacks on veracity accuracy on credibility.1
1 Cf. recommendation as to section 146(1).
87.12. Section 155(2).-
This takes us to clause (2) of section 155, which allows proof that a witness has been bribed or has accepted an offer of a bribe or has received other corrupt inducement. As to the words "has accepted the offer of a bribe", it is to be noted that the clause was originally framed "has had the offer of a bribe."
The substitution was probably grounded1 upon the ruling in the case of the Attorney-General v. Hitchcock, where it was held that the fact that the witness has accepted a bribe to testify may, if denied, be proved, but a bare admission by the witness that he has been offered a bribe cannot; Pollock. C.B., remarking that it was no disparagement to a man that a bribe is offered to him, though it may be a disparagement to the person who makes the offer.2
No further comments are needed on this clause.
1. Woodroffe.
2. Attorney-General v. Hitchcock, (see discussion as to section 153).
87.13. Clause (3)-Evidence liable to be contradicted.-
Under clause (3), the witness may be impeached by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Illustrations (a) and (b) to the section illustrate this clause.1
Some comments are called for as to the phrase 'his evidence which is liable to be contradicted', which occurs in this clause. Some obscurity exists as to the exact meaning of the words in question. It was observed by Wilson J. in a Calcutta case2 that these words mean (evidence) "which is relevant to the issue". On the other hand, Cunningham3 raises 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 exception to section 153. The latter interpretation appears to be correct, for two reasons. First, the wording in section 155(3) is wide, "any part of his evidence which is liable to be contradicted", and, second, the two exceptions to sections 153 lay down, in substance, that where a witness denies a previous conviction, or a fact impeaching has impartiality, he can be contradicted.
1. See also Anup v. Kedarnath, (1925) 30 CWN 835.
2. Khadijah v. Abddol, 1889 ILR 17 Cal 344 (346).
3. Cunningham Evidence, section 373, cited in Woodroffe & Amir Ali Evidence, (1959), Vol. 3, p. 1777.
87.14. Recommendation as to section 155(3).-
In our opinion it would be useful to insert a clarification adopting the wider view of clause (3).
87.15. Section 155(3)-Tape Records.-
Here we may refer to a Supreme Court case1 relating to the admissibility of tape recorded evidence in the election petition in respect of a presidential election. The petitioners relied on some tape-recorded statement in order to contradict a witness of the respondent. This was objected to by the counsel for the respondent, on the ground that the tape-recorded conversation was not admissible in evidence for contradicting the evidence of the witness.
It was urged by the counsel that under section 155(3) of the Evidence Act, before any former statement can 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. Overruling this contention, the Supreme Court held that 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.
1. M. Sri Rama Reddy v. V.V. Giri, AIR 1971 SC 1162.
87.16. The Supreme Court also held that the interpretation placed by Calcutta High Court in (1890) ILR 17 Cal 344 was not correct as to the words "which is liable to be contradicted". The court remarked that the evidence may be given that the witness is unworthy of credit and this evidence may be of a general nature and may not be directly relevant to the issue. The evidence may also be regarding the receipt of bribe by the witness so that his statement cannot be acted upon. The previous statement recorded on tape must be considered to be relevant to the issue to impeach the credit of the witness by establishing that he was making contradictory statements.
81.17. Relationship between section 155 and section 145,- Recommendation.-
A question of procedure may be dealt with. Section 155(3) only lays down that the credit of a witness may be impeached, inter alia, by "proof of former statements inconsistent with any part of the evidence, which is liable to be contradicted", but it does not lay down the manner in which the former statement in writing, when it is sought to be tendered in evidence for contradicting a witness, is to be proved. That is provided in section 145. In other words, section 155 is controlled by section 145 and is not independent of it1.
As laid down by their Lordships of the Privy Council in Bal Gangadhar Tilak v. Shrinivas Pandit, AIR 1915 PC 7: 42 IA 135: ILR 39 Born 441 (PC), and in Jagrani Kunwar v. Durga Prasad, 1914 ILR 36 All 93: 41 IA 76 (PC), if a party wants to rely on a previous statement, contained in a letter of a person who has gone into the witness-box, in order to contradict him, it is the duty of such person to put that letter to the party or the witness and to give him an opportunity to explain it. We have dealt with this aspect under section 145, when considering its scope in relation to oral statements. So far as section 155(3) is concerned, it may be useful to provide that it is subject to section 145.
1. Gopi Chand v. Emperor, 1930 Lah 491 (495).
87.18. Section 155(4).-
Section 155(4) provides that when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. Such evidence means something more than that it can be proved that she has on specific occasions done acts which may be called immoral. Some meaning must be given to the word 'generally', and it appears that the clause refers to such evidence as that her general reputation was that of a prostitute, or that she bad the general reputation of going about and committing immoral acts with a number of men1.
1. Mahid Ali v. Emperor, AIR 1932 Cal 523 (524).
87.19. History of clause (4).-
It may be stated that the Act, as originally drafted, contained the following additional section on the subject of character:-
"In trials for rape or attempts to commit rape the fact that the woman on whom the alleged offence was committed is a common prostitute or that her conduct was generally unchaste is relevant".
It was, however, thought unnecessary to retain this as a separate section1 and it was accordingly incorporated with the present one. In the case now mentioned, evidence is receivable not so much to shake the credit of the witness, as to show directly that the act in question has not been committed. In trials for rape or attempts to commit that crime, not only is evidence of general bad character admissible under the first clause-"to show that the prosecutrix ought not to be believed upon her oath", but also as proof that she is reputed prostitute for it goes for towards raising an inference that she yielded willingly2.
1. Woodroffe.
2. Woodroffe.
87.20. Question of consent.-
Evidence of the general immoral character of the prosecutrix is admissible not only to show that she is unworthy of credit, but also on the question of consent. In the American case of People v. Johnson, (1893) 106 California 289, cited by Sarkar, the following observations occur-
"It is certainly more probable that a woman who has done these things voluntarily in the past would be much more likely to consent1than that one whose past reputation was without blemish and whose personal conduct could not truthfully be assaulted".
This does not, of course, mean that the bodily integrity of a woman is regarded as any the less deserving of legal protection because her character is suspicious.
The character is relevant only for deciding the question of fact-probability of consent.
1. Emphasis added.
87.21. Apart from general character, the prosecutrix may be cross-examined as to other immoral acts with the prisoner and if she denies these, such immoral acts may be independently proved1. This is because they are relevant facts as indicating consent In England,2 on the other hand, while the prosecutrix may be cross-examined as to immoral acts as to other men (as shaking her credit) yet if she denies them, witnesses cannot be called to contradict her. This is because the question this time is relevant only to her credit as a witness.
1. Phipson Manual, (1972), p. 288.
2. (a) R. v. Riley, (1887) 18 QBD 481. (b) R. v. Basher, (1969) 1 WLR 190.
87.22. Section 155, in its opening lines, speaks of the credit of a "witness". But, on the other hand, clause (4) is defective in the sense that while clauses (1), (2) and (3) begin with the words "by evidence" or "by proof", clause (4) does not so begin. It would, in our view, be better to make the matter clearer by putting clause (4) also as a branch of section 155.
87.23. Position of the accused.-
We have disposed of the four clauses of section 155 as it now stands. It remains now 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 witness1. The question how far his character can be attacked under section 155, by independent evidence, however, still remains since it falls outside sections 132 and 148.
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.
1. See discussion as to sections 132 and 148, supra.
