IMPEACHING THE CREDIT OF THE WITNESS

Introduction

The purpose behind the Law of Evidence is to limit the boundaries of investigation, without which no suit can be decided even if its trial takes place for a long time. The end result of the trial is to meet the ends of justice and if the “justice is delayed it is similar to justice being denied”. In India, investigation system is ‘Adversarial’ where the investigation of the offences is done by the police or other investigating agencies, the investigation being free from judicial supervision or control unlike the ‘Inquisitorial’ system where the investigation is supervised by the Magistrates resulting in high rate of conviction. The Indian Evidence Act, 1872 which came to be enforced in 1872 still continues to be applicable with least changes being made during the long period of more than 140 years.

Chapter X (Examination of the Witnesses)” contains the provision of examination – in chief, cross-examination, and the manner in which the credit of the witness is impeached and so on.

methods in which the credit of the witness can be impeached during cross examination

“Sections 138” – Order in which the Examination is to be conducted.

“Section 140” – Character of the witness can be cross- examined and if it is necessary re-examined.

“Section 145” – Previous Statement made by witness in writing or if it is reduced to writing can be cross – examined.

“Section 154” – Questions that can be put to hostile witnesses.

“Section 146” – To injure the character of the witness, questions are permitted to be asked during cross- examination.

“Section 155” – [How the credibility of the witness can be impeached]

“Section 155” lays down another method of discrediting a witness by permitting independent evidence to be led by the opposite party “or with the consent of the court, by the party calling him” by three different ways. Originally it contained four clauses but the fourth clause was omitted by the Indian Evidence (Amendment Act), 2002.

“Clause 1 (General reputation of untruthfulness)” of the Section 155 contains the provision of giving independent evidence that a witness examined by the opponent has a reputation of being a liar or not being truthful, and hence his testimony cannot be relied upon.

“Clause 2 (Witness has been bribed or has accepted the bribe)” – If the witness has accepted some benefit in the form of bribe or he has accepted the offer of bribe  or any other “corrupt inducement” there are high chances that he might be making false statements for the benefit he has received.  It even shows his greediness and dishonest behavior. Hence, the statements made by him is not worthy of credit.

“Clause 3 (Proof of Statements inconsistent with any part of his evidence which is liable to be contradicted)” – Where the opposite party intends discrediting upon the evidence of any witness it can be proved by his previously made statement which is not in consonance with the evidence at trial.

Illustration

Seeta is charged for murdering Geeta. Reshma disposes that Geeta while she was dying has declared that Seeta had given the wound which led to her death[ Geeta’s death]. Evidences are led to show that on a previous occasion, where Reshma said that the wound was not given by Seeta or in her presence. The evidence is admissible.

In the case of Kehar Singh v. Delhi Administartion[1] it was held that statement made by the witness before the constitution under the Commissions Enquiries cannot be used –

  • To subject the witness to any civil or criminal proceedings.
  • Nor can be used against him in any civil or criminal proceedings, the exception being that he can be prosecuted for giving the false evidence [Section 193 of Indian Penal Code]. The statement to contradict or impeach his credit is not permissible.

In Majid v. State of Haryana[2] the Supreme Court held that the method recognized under Section 155 (3) is – if the credibility of the witness has to be judged based on the previous statement made by the witness, which he has written or it was reduced in writing then the attention of the witness should be drawn to those parts which are used for the purpose of contradicting him [“the procedure laid down under Section 145 of the Indian Evidence Act”].

“Section 145” and “Section 155 (3) of the Indian Evidence Act”

“Section 145 of the Evidence Act” does not deal with the oral statements instead it provides that If the adverse party wants to “contradict him by writing” then those parts which are used for the contradiction should be brought to the notice of the witness . But under Section 155(3) of the Indian Evidence Act there is no discrimination between the statements whether they are oral or written and both the oral and written statements can be used to “impeach the credit of the witness”. If the statements are in writing then the provision which is contained in “Section 145” should be adhered to.

“Explanation appended to Section 155 of the Indian Evidence Act”

The question of why the witness is “declaring another witness is unworthy of credit” cannot be asked in examination – in – chief the reasons for holding such a  belief, a question of that sort can be asked only during the cross- examination”. The answers which he gives during the cross- examination cannot be used for the purpose of contradiction but if those statements are false he can be charged for giving false evidence in future.

Difference between “Section 52” and “Section 155 of the Indian Evidence Act”.

Where the character of the witness is itself the subject matter of the suit, such questions cannot be asked under “Section 52” whereas “Section 155” prescribes the manner of impeaching the credit of the witness, and hence it is wrong to construe that “Section 155” is an exception of “Section 52”. [Hussenaiah v. Yerraiah[3]].

Is Tape – Recording admissible to question the credibility of the witness?

The question was answered in affirmative in the case of Rama Reddy v. V.V. Giri[4].  But before relying on such evidence place, accuracy and time has to be proved. [D.R. Punjab Montogomery Transport Co. v. Raghuvanshi Pvt. Ltd.[5]]

Conclusion

Witnesses have a major role in determining the guilt/ innocence of the accused. The Court cannot rely upon the testimony of theses witnesses if they are found to be having general reputation of being untruthful, are corrupt i.e. they are disposing the incorrect statement in lieu of the benefit which they have received out of bribe, or their statements do not match with their previous one [does not matter whether the statements are oral or written]. If the written statements are to be contradicted then the procedure laid down under “Section 145 of the Indian Evidence Act” has to be followed. These provisions help the Court to decide whether to rely on the statements of the witnesses or not and how much it should be relied upon, which helps in determining the truth and aids in doing justice and achieving the goals of natural justice.

Author(s) Name: Nivedita Tiwari (SRM University)

References:

[1] AIR 1988 SC 1883.

[2] AIR 2002 SC 382.

[3] AIR 1951 AP 39.

[4] AIR 1971 SC 1162.

[5] AIR 1983 Cal. 343.

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