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Report No. 69

Chapter 89

Credit of Declarants other than witnesses

Section 158

89.1. We have so far been discussing provisions whereunder the credit of witnesses who give evidence in court can be impeached, or, in certain cases, confirmed. It was also necessary for the legislature to make a provision as to the credit of persons who are not witnesses. It may be recalled that two important sections of the Act-sections 32 and 33-provide for the relevancy of certain statements made by certain persons in special circumstances. These statements are made by persons who are now dead, or are not available to give evidence and technically they are not "witnesses", so that the provisions discussed so far as to impeaching credit do not apply to them.

When such statements become relevant, the credit of the persons who made the statements should be subject to impeachment or confirmation in the same way as the credit of a witness who appears in court. It is on this principle that section 158 provides that whenever any statement relevant under section 32 or section 33 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested. The practical utility of this section is demonstrated by judicial decisions. We shall refer to a few of them.

89.2. Deposition of deceased witness to be corroborated under section 158.-

A Calcutta case1 illustrates the aspect of confirmation. The deposition of a witness in a criminal case was, after his death, admitted in a subsequent civil suit under section 33. A witness under examination was then asked what information the deceased witness gave him soon after the occurrence. It was held that the question was admissible under this section in order to corroborate the deposition of the deceased witness.

1. Fool Kissory v. Nobin Chunder, 1896 ILR 23 Cal 441.

89.3. Two Lahore cases illustrate the aspect of contradiction and also the fact that one has to read into the section certain other propositions. Section 158, it was held, places a person whose statement has been used as evidence under section 32 in the same category as a witness actually produced in Court, for the purpose of contradicting his statement or corroborating him by a previous statement made by him. Therefore, a statement of A, admitted in evidence under section 32, may be contradicted by the previous statement of A made before the police officer during the investigation1. For the purpose of such contradiction of A by his statement before the police officer during investigation, A must be treated as a witness actually produced in court, and it must further2 be assumed that his previous statement made before the police was put to him in cross-examination as required by section 145.

1. Niamat Khan v. Emperor, AIR 1930 Lah 409 (413) (Jailal and Abdul Kadir,

2. Hari Rant v. Emperor, AIR 1926 Lah 122 (124) (Harrison & Jailal, JJ.).

89.4. Other statutory provisions creating a bar.-

Of course, the admissibility of a statement under section 158 is subject to any statutory provisions barring the use of particular statements for special reasons. Thus, it is not correct to say that a statement, otherwise falling under section 162 of the Code of Criminal Procedure, would become admissible merely because it can be brought under section 158, Evidence Act. The provisions of section 162, Criminal Procedure Code, are specific provisions on the admissibility of statements made to the police. They control the general provisions contained in section 158, Evidence Act1.

This objection does not, however, apply to the First Information Report. In Amrit Lal v. Emperor, AIR 1933 Lah 927 (990) (Coldstream, J.) it was suggested that list of property alleged to have been stolen, which is given to implement and complete the first information report, may be referred to under section 158 and proved under section 159. The above discussion does not call for any amendment of the section.

1. Bhondu v. Rex. AIR, 1949 All (366-67).

Indian Evidence Act, 1872 Back

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