Report No. 69
88.31. Section 157-Meaning of "competent to investigate".-
These decisions illustrate the significance and utility of the section, and its wide scope. They do not necessitate any amendment of the section. But we may refer to one point which requires consideration. This arises out of the expression "Legally competent to investigate" used in the section. The term "investigation" is, according to the Code of Criminal Procedure,1 confined to proceedings taken by the police or by any person other than a Magistrate who is authorised in this behalf. The Supreme Court in H.N. Rishbud's case2enumerated the following as steps which would normally fall within the scope of "investigation":
(i) proceeding to the spot;
(ii) ascertainment of facts and circumstances;
(iii) discovery and arrest of suspected offender;
(iv) collection of evidence.
The last mentioned step would include-
(a) examination of persons (and recording their statements, if thought fit); and
(b) search of place; seizure or things; and
(c) formation of opinion as to whether the materials are enough for submitting a charge sheet and filing a report before the Magistrate in either case.
1. Section 2(b), Code of Criminal Procedure, 1973-Definition of "Investigation".
2. H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 (201).
88.32. Investigation by Magistrate.-
The precise question that arises is whether a Magistrate, while recording a statement of a witness before trial-i.e. during proceedings under section 159 of the Code of Criminal Procedure, 1898, or under section 164 of that Code or corresponding provision in the present Code-can be said to be an authority "legally competent to investigate the fact" within the meaning of section 157, Evidence Act. That section requires (as a condition precedent to the admissibility of a previous statement) that the previous statement should have been made either before an authority "legally competent to investigate the fact", or at or near the time when the fact to which the statement relates took place.
In spite of the limited definition of the term "investigation" in the Code,1 the Supreme Court has, in one case2, impliedly accorded a very extended meaning to the words "legally competent to investigate" as used in section 157. In that case, a prosecution witness, after his examination-in-chief before the sessions court was over, completely resiled in cross-examination. The point for consideration was whether the statement made before the committing Magistrate could be availed of to corroborate the evidence in examination-in-chief of the witness concerned. The Supreme Court answered the question in the affirmative.
1. Para. 88.31, supra.
2. Bhagwan v. State of Punjab, AIR 1952 SC 214.
88.33. In a Calcutta case1, the High Court held that a statement made by a witness before a Magistrate at a test identification parade can be said to have been made to an authority legally competent to investigate. After a review of the case-law, the High Court expressly held that the proceedings conducted by the Magistrate for the purposes of identification would certainly be proceedings by an authority legally competent to investigate, and any statement made by a witness to such authority can be used to corroborate his testimony in court.
1. Sarju v. State of West Bengal, (1961) 2 Cr Ij 71 (Cal).
It is clear that the holding of a test identification parade is a step towards the collection of evidence, and is, as such, a part of the investigation proceedings. But, in view of the limited definition of the term "investigation" in the Code, the holding of such a parade by a Magistrate is not, speaking technically, "investigation" in terms of the definition in the Code. This position, obviously, is anomalous. To cover the statements recorded under section 164 of the Code of Criminal Procedure or under other statutory provision by authorities other than the police (e.g. judicial Magistrates), an amendment of section 157 is desirable in view of the obscurity prevalent on the subject.
88.35. Recommendation to add authorities competent to inquire.-
We, therefore, recommend that section 157 should be modified by a suitable amendment to provide for the above matter. In brief-this is not a draft-the amendment should bring within the fold of the section authorities1 which are under law competent to inquire into a fact or to record statements.
1. H.N. Rishbud v. State of Delhi, AIR 1965 SC 196 (201).
88.35A. Meaning of corroboration.-
The meaning of "corroboration" has been the subject-matter of some controversy. In a Madras case1, the majority regarded, section 157 as applicable to section 114, illustration (b), so as to be available for corroboration of an accomplice. But it is doubtful if it can legally amount to corroboration within the meaning of illustration (b) to that section. It is possible to hold that the prior statement of an accomplice is admissible, only for the purpose of showing his consistency and as disproving a suggestion that it was recently concocted by him. It would be dangerous to admit it to prove the truth of the evidence also.
This is likely to defeat the object of the rule requiring independent evidence by way of corroboration. We may note that we are recommending addition of the test of independent evidence in section 114, illustration (b). The point will then become academic. It would appear that the "corroborate" is used in two different senses in section 114 and section 157. In the latter section, it is used to show the consistency of the witness, and only indirectly to show veracity. In the former section, stronger and independent corroboration is required.
1. Muthukumaraswami Pillai v. King Emperor, 1912 ILR 35 Mad 397 (524).
88.36. Corroboration by the statement of another person not permissible.-
It should be noted that section 157 is confined to corroboration by a prior statement of the very witness whom it is sought to corroborate. Witness X cannot be corroborated by the pre-trial statement of a person.-barring those cases where the statement of Y becomes admissible under a special provision. Barring such special provisions, the use of such extra-judicial statement or out-of-court assertion would be excluded by the rule against hearsay, the maker of the statement not being before the court. This aspect seems to have been overlooked in an Orissa case. In that case, the wife, in defence to a suit for restitution of conjugal rights, pleaded, inter alia, that the husband was impotent and was guilty for cruelty. The following facts are taken from the judgment1-
"The trial Court on evidence accepted both the pleas of the wife and dismissed the suit. On the point of impotency the evidence of the wife also gets some corroboration from the report of the doctor which reveals that the husband had a small penis and the erection was negligible. Mr. Patnaik, learned counsel for the appellant mainly contended that the doctor should have been examined in the court and made available for cross-examination. It is admitted by the appellant that he was examined by the doctor in the presence of counsel for both sides. Though opportunities were given to the parties no effect was made by the appellant to summon the doctor as a witness.
That being so, the request of the learned counsel to remand the case for examination of the doctor cannot be allowed. In any event, the doctor's report, though itself appears not to be much decisive, lends some support to the story of the wife that the appellant was incapable of performing sexual intercourse with her. That apart, the wife also alleged that she was assaulted by the appellant when she made allegation against the sorcerer who came to cure the husband of his impotency, but attempted to outrage her modesty". With due respect, we may state that the report of the doctor was inadmissible, for the reasons, stated above. It was not covered by either by section 157 or by any other provision.
1. Khageswar Kama v. Aduti Karnant, AIR 1967 Oni 80.
88.36A. Recommendation as to section 157.-
In the result, the only change required in section 157 is that already indicated1.
1. See para. 88.35, supra.
88.36B. Section 157A-Confirmation of credit of a witness.-
We have dealt with such provisions as exist on the subject of corroboration. We should now refer to one matter in respect of which a comprehensive provision is desirable. We have in mind the need for a provision regarding confirming the credit of a witness by independent evidence. At present, such confirmation can be made (i) by way of producing corroborative evidence under sections 156-157, or (ii) by cross-examining the witness produced to impeach the credibility, or (iii) by substantive evidence on the main issues. There is, however, no comprehensive provision permitting independent evidence to be given for confirming the credit of a witness, though there is a provision for impeaching credit.
Curiously, section 158, which is limited to the very narrow situation of a declaration or statement made by a person who is now dead or unavailable as a witness, does permit evidence to be given, inter alia, to confirm the credit of the declarant. But there is no mention in the Act as to confirming the credit of a witness who has actually appeared before the court. Of course, confirmation is indirectly achieved when the witness stands the test of cross-examination, but it appears to us that there should be a right to confirm the credit of any witness who has given evidence in court.
Since evidence impeaching the credit of a witness has been made the subject-matter of a specific provision in section 155, it is appropriate that a corresponding provision should be made regarding confirmation. We believe that no elaborate discussion is necessary to justify such a provision on the merits. If, for example, the credit of a prosecution witness is impeached in cross-examination under section 146, or by extrinsic evidence under section 155, fairness requires that there should be some machinery whereby the credit of the witness can be confirmed or-to use an expression often employed by academic writers-for "re-establishing" his credibility.
88.37. Position in England.-
This appears to be permissible in England. Phipson, has, in M anual of the Law of Evidence1stated that when the reputation of a witness for veracity of his evidence has been attached, his credit may be re-established either by cross-examination of the impeaching witness or by general evidence that the impeached witness is worthy of credit2 or by general evidence that the impeaching witness is unworthy of credit, that is, by general "recrimination".
1. Phipson Manual of Law of Evidence, (1972), p. 286.
2. Emphasis supplied.
88.37A. In the U.S.A., according to Rule 20 of the Uniform Rules of Evidence:1 "Subject to rules 21 and 22, for the purpose of imparting or supporting the credibility of a witness, any party, including the party calling him, may examine him and introduce extrinsic evidence concerning any conduct by him and any other matter relevant upon the issue of credibility". It is unnecessary to multiply legislative precedents, which are referred to here only to illustrate the practical utility of the suggested provision.
1. Rule 20, Uniform Rules of Evidence.
If the above reasoning is accepted, it would be appropriate to insert a new section on the following lines, and we recommend that it should be inserted:
"157A. (1) Where the credit of a witness has been impeached by any party, the adverse party may, notwithstanding anything contained in section 153, in order to re-establish his credit, introduce evidence concerning his accuracy, credibility or veracity or to show who he is and his position in life.
(2) When a man is prosecuted for rape or an attempt to commit rape, it may be shown that the prosecutrix was of generally good moral character."