Report No. 69

88.21. Rationale.-

It was argued at common law that by offering a witness, a party is held to recommend him as worthy of credence, and warranting his veracity, corroboration is not permitted1, that former statements are no proof that entirely different statements may not have been made at other times and are therefore no evidence of constancy; that if the sworn statements are of doubtful credibility those made without the sanction of an oath, or its equivalent, cannot corroborate them,2 that a witness having given a contrary account, although not upon oath, necessarily impeaches either his veracity or his memory; but his having asserted the same thing does not in general carry his credibility further than, nor so far as, his oath.3

Section 157 in our Act, however, proceeds upon the principle that consistency is a ground for belief in the witness's veracity.4 Chief Baron Gilbert was of opinion that the party who called a witness against whom contradictory statements had been proved5 might show that the witness had affirmed the same thing before on other occasions, and that he was therefore "consistent with himself".6

1. Best Evidence, 11th Edn., pp. 580, etc. cited in Woodroffe.

2. Wharton Evidence, S. 570, cited in Woodroffe.

3. Starkie Evidence, 253, cited in Woodroffe.

4. (a) R. v. Malappa, 1 (1874) 11 Born HCR 196 (198); (b) R. v. Bepin Biswas, 1884 ILR 10 Cal 970 (973).

5. This is not necessary under the section.

6. Gilbert Evidence, 135-136, cited in Woodroffe.

88.22. Position in U.S.A.-

The question of the use of prior statement of a non-party witness has often arisen in the U.S.A. Wigmore, in his first edition, approved the "orthodox view". In the later editions, however, he said that "further reflection has shown the present writer that the natural and correct solution is the one set forth in the text above".1

Wigmore's final position2 as to inconsistent statements was that a witness's prior inconsistent statement ought, on principle, to be admitted, not only to discredit witness's testimony, but also as "affirmative testimonial" evidence, because "by hypothesis the witness is present and subject to cross-examination". There are, however, certain dangers involved if this view is adopted as was noticed in the judgment in an American case discussed below.

1. Wigmore Evidence, 3rd Edn., 1940, Vol. 3, Article 1018, footnote 2 referred to in Annual Survey of American Law (1963), p. 771.

2. Wigmore Evidence, 3rd Edn., 1940, Vol. 3, article 1018, referred to in Annual Survey of American Law (1953), p. 771.

88.23. In Corner v. States, 257 SW 2nd 564 (Ark. 1953) noted in Annual Survey of American Law (1953), p. 772, the defendant was charged with carnal knowledge of his daughter. Called by the prosecution, the daughter denied having sexual relations with her father. She admitted having given the prosecutor a signed statement to the contrary, but she testified that it was not true. There was no evidence of the crime, and her conviction was reversed. Although the Attorney General urged the Supreme Court of Arkansas to overrule its earlier decisions adhering to the orthodox rule that a prior inconsistent statement of a non-party witness is without substantive value, the court declined to do so. The court said that while it appreciated "the abstract logic of Wigmore's argument there are objections to adopting his reasoning in its entirety."

Under such a rule, the court thought, "an entire accusation, such as a charge of rape, "could be fabricated merely by first having the prosecutrix emphatically deny the truth of the charge and by then calling another witness to say that the prosecutrix had made a contrary statement on some other occasion." Moreover, said the court, "we are not persuaded that the opportunity to cross-examine months or years later is equally as valuable or equally as effective as the exercise of that privilege when the facts are much fresher in the memory of the witness". Doubtless there are arguments both ways, but "when the arguments are thus closely balanced, we think the advantage of certainty in the law should tip the scales in favour of the rule of stare decisis".

88.24. Model Code.-

The Model Code of Evidence and the Uniform Rules of Evidence both adopt Wigmore's view. According to the Model Code1 "Evidence of a hearsay declaration is admissible if the judge finds that the defendant is present and subject to cross-examination". According to the Uniform Rules, "Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated is hearsay evidence and inadmissible except;-(1) a statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject-matter, provided the statement would be admissible if made by declarant while testifying as a witness".2 The Conference Committee commented as follows on this Uniform rule.

"When sentiment is laid aside there is little basis for objection to this enlightened modification of the rule against hearsay."

1. Model Code of Evidence, (1942), rule 503(b).

2. Uniforms Rules of Evidence (1963), rule 63(1).

88.25. California Code.-

By statutory provisions in the U.S.A. prior consistent statements are admitted in many jurisdictions. The following is a typical set of provisions1 extracted from the California Evidence Code:

"Section 1236. Prior consistent statement.-The evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with section 791.

"Section 791. Prior consistent statement of witness.-Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, notice for fabrication, or other improper motive is alleged to have arisen."

1. Sections 791 and 1236, California Evidence Code.

88.26. Judicial decisions in India.-

It may now be convenient to refer to a few judicial decisions in India which illustrate the application of section 157 and its wide scope. We first refer to the judgment of the Supreme Court in Ram Ratan1. On 8th May, 1959, shortly before 3 p.m., while the grain of Sawanram was being weighed for sale at the shop of Rooprani, the three appellants and two others (armed with guns) came up. One of the appellants Ram Ratan fired at Bhimsen, Hansraj fired at Sawanram, and Maniram also fired at Jawanram. Bhimsen died on the spot, and Sawanram and Lakhiram were injured. Thereafter, all the assailants ran away. Roopram had shut up his shop when the incident took place and he came out only when every thing was over. Jawanram asked him to send a telegram to the police station and told him the names of the five assailants.

Thereafter, Jawanram started for the police station to make a report, but Ram Singh constable met him on the way. Thereupon Jawanram made a complaint then and there. When the complaint was being recorded, Rampratap (Jawanram's son) also turned up. The three appellants were tried and convicted by the Sessions Court, and then by the High Court. They came in appeal to the Supreme Court. Contention of the counsel on behalf of the appellants was that the appellants had been implicated on account of enmity. The statement of Roopram was not admissible under sections 6 and 157. The solitary evidence of Jawanram was insufficient for conviction. Statements of Lekhram and Rampratap were not reliable.

1. Ram Ratan v. State of Rajasthan, AIR 1962 SC 424.

88.27. The main question was whether the statements of Jawanram to Roopram were admissible or not under section 157, when deposed to by Roopram. In the opinion of the Supreme Court, there are two things which are essential for section 157 to apply. The first is that a witness should have given testimony with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact at or about the time when the fact took place.

In this case, Jawanram had made the statement to Roopram, immediately after the incident to the affect that five persons (including the three appellants) had attacked Bhimsen, Lekhram and himself. This was therefore a prior statement of Jawanram at or about the time when the fact took place. This prior statement can be proved by the person (Roopram) to whom it was made and can be used as corroboration for the evidence of Jawanram. It is not necessary for the admissibility of the statement of Roopram that Jawanram should also say, in his testimony in court, that he told Roopram immediately after the incident, the name of the five assailants.

Of course, if Jawanram stated in the court that he had made the statement to Roopram after the incident that would add to the weight of the evidence of Roopram. Thus, the evidence of Roopram corroborated the statement of Jawanram in two ways. First, the incident took place in front of his-shop, and secondly he proved the statement of Jawanram as to the persons who took part in the incident Thus, it corroborated the statement of Jawanram under section 157. Therefore the evidence of Jawanram and Roopram was sufficient for conviction. Apart from this, the evidence of Lekhram and Rampratap also added to the weight of the prosecution case. Therefore, there was no force in the appeal

88.28. In Radha Kishan,1 the facts were as follows:-

In January, 1970, when Moju (victim) was returning home. Radhakishan the (appellant) and Rathoria met him at about 8.00 p.m. Radhakishan told Moju as to why he was flashing the torch-light. Moju denied having done so. Then Radhakishan caught hold of Moju and took out his dagger and inflicted certain blows therewith on Moju. After that Moju was dragged upto the field where he was covered with a "chadar" and was left. Next day Bhaguta arrived at the field. On his query, he (Moju) told him that Radhakishan and Rathoria had beaten him. After some time his (Moju's) brother Madan also reached the spot. Moju informed him that Radhakishan and Rathoria had beaten him. Rathoria had absconded and Radhakishan had been convicted. This was an appeal by him. Contention of counsel on behalf of the appellant was:

(i) In the F.I.R., Madan stated that a Pharsi was used. In the trial court, Moju said that a dagger was used.

(ii) The weapon of offence had not been recovered.

(iii) The trial court had relied on the solitary testimony of Moju.

(iv) There was no independent witness of the locality.

1. Radha Kishan v. State, 1973 Cr LI 481.

88.29. The Court held as follows:

"The victim, Moju lost his balance of mind, and it was difficult for him to judge precisely whether the weapon of offence was a knife or a dagger or a pharsi. The discrepancy was of a minor nature. The prosecution had succeeded in proving to the hilt that a sharp edged weapon was used by Radhakishan. Therefore, there was no force in the first contention. As to the second point, the recovery simply furnished a corroborative piece of evidence, and, where the direct and substantive evidence was available on the record, then want of such recovery would not weaken the case. A careful perusal of the statement of Moju showed that the specified portions were not mutually inconsistent."

88.30. As to the admissibility of the statement of Madan under section 157, it was not necessary that the witness sought to be corroborated must also say in the court in his testimony that he had made the former statement to some one. In the present case, Moju had said that he had narrated the incident to his brother (Madan); that adds to the weight of the testimony of the person who gave evidence in corroboration. So far as the question of local witness is concerned, it is every day experience that there is a general reluctance on the pan of villagers to appear a witnesses and get themselves involve in a case. Apart from this, it does not injuriously affect the facts of the case. In the circumstances, the court found no force in the appeal.