Introduction

At its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. Involved in the assessment may be judgments about whether the witness can generally be considered to be a truthful or untruthful person and whether, although generally truthful, he may be telling less than the truth on this occasion.The witness being a medium through which the court is to arrive at the truth or falsity of the claim or charge in litigation, it is always necessary to ascertain the trustworthiness of this medium. This is the common function of cross-examination, which is, however, not in all cases adequate. It is necessary, therefore, that the parties should be empowered to give independent testimony as to the character of the witness with a view to show that he is unworthy of belief by the court, which may be done in the four ways specified in section 155 of the Evidence Act, 1872. To avoid entering upon irrelevant matters, the section should be strictly construed.1 The court has always the power to recall a witness at any stage of the proceeding and to put any questions in any form.2

Who is a credible witness?

Credible witness is a person making testimony in a court or other tribunal, or acting otherwise as a witness, whose credibility is unimpeachable. A witness may have more or less credibility, or no credibility at all. In the common law system, the term 'credible witness' may be used generally, to refer to testimony, or for the witnessing of certain documents.Several factors affect witnesses' credibility. A credible witness is "competent to give evidence, and is worthy of belief.3 Generally, a witness is deemed to be credible if they are recognized (or can be recognized) as a source of reliable information about someone, an event, or a phenomenon.

Impeaching credit of witness under the Evidence Act

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:- (1) by the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit; (2) by proof that the witness has been bribed, or has 90[accepted] the offer of a bride, or has received any other corrupt inducement to give his evidence; 

1 Kamal vs. State AIR 1959 Cal.3422 Management of Glaxo India Ltd. Vs. State of Assam (1995) 2 Gau LR 2243Peck v. Chambers, 44 W. Va. 270, 28 S. E. 706; Savage v. Bulger (Kyj 77 S. W. 717: Amory v. Fellowes, 5 Mass. 228; Bacon v. Bacon, 17 Pick. (Mass.) 134; Robinson v. Savage, 124 111.266, 15 N. E. 850.

(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; (4) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. Explanation – A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. Illustrations (a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B.Evidence is offered to show that, on a previous occasion, he said that he had delivered goods to B. The evidence is admissible. (b) A is indicated for the murder of B.C says that B, when dying, declared that A had given B the wound of which he died.Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence.

The evidence admissible.

The credit of a witness may be impeached in the following ways: (a) by cross examination;4 that is, by eliciting from the witness himself facts disparaging to him; (b)by calling witness to disprove his testimony on material points.5 The credit of a witness is, of course, indirectly impeached by evidence disproving the facts which he has asserted; (c) by eliciting in cross-examination, or if denied, independently proving, the partiality or previous conviction of a witness6, or that he has been bribed, or made previous inconsistent statements, or the immoral character of the witness, if she be prosecutrix in a trial for rape;7 (d) by independent proof that the witness bears such a reputation as to be unworthy of credit.8

This classification thought corresponding with that generally given in the English text-books, is not that adopted by the Act, which deals with the above mentioned matters under the clause of:

(i) cross examination;9

(ii) contradiction;10

4 See section 138,140,145-545 Under ss 5; Taylor, Evidence, p.1406 Section 1537 Section 155 cll (2), (3), (4)8 Section 155 cl (1)9 Sections 138, 140, 145, 152-5410 Section 5, 153

(iii) impeachment of credit.11

(i) Cross Examination may or may not have the effect of impeaching the credit of the witness, a results which depends upon the nature of the questions put to the witness and the answers which he gives to them.

(ii) A distinction may be drawn between contradicting a witness and impeaching the credit. Where the facts stated by the witness are relevant to issue, evidence may always be given to contradict them under the provisions of sec.156.12 If the fact be one which is not relevant to the suit or proceeding, except in so far as it affects the credit of the witness, no evidence is admissible in contradiction except in two specified cases.13

(iii) Lastly, the impeachment of a credit of witness is considered and set apart from both cross-examination and contradiction, apparently because, under the Act, a witness’s credit may be impeached upon a point, which there has been no cross-examination and therefore no room for contradiction.

The testimony of a witness may not be rejected merely on the ground that certain criminal proceeding are pending against him and that he has a shady and doubtful character. His testimony must be scrutinized on his own merit, keeping in view and paying due consideration to the fact of his in certain criminal proceedings. In cases of bribe, direct testimony of wholly disinterested strangers as eye - witnesses can seldom be forthcoming. It is accordingly, either circumstantial evidence or the evidence of trap witnesses, which is usually available in such cases. The testimony of police officers and of persons associated with traps may not be unceremoniously ruled out as tainted without scrutiny. It should be considered in the light of all the attending circumstances, and, if it impresses the Court as credible, it may be accepted.14 In prosecution under the Prevention of Corruption Act, 1947 the testimony of police officials cannot be rejected merely because they are interested in the success of the prosecution.15 The testimony of police officials cannot be underestimated merely because they are police officials.16 Such testimony deserves consideration by courts in the light of all the attending circumstances, and if it impresses the Court as credible, it can safely be accepted for basing a conviction thereon.

In view of the embargo by Sec. 6, Commission of Enquiry Act, 1952 the statement of a witness recorded in a enquiry before the commission cannot be used at the trial for the purposes of cross-examination to impeach his credit.17

No presumption adverse to a witness can be drawn against him without giving him an opportunity to explain features complained of.18

11 Section 15512 Cunningham, Evidence, p. 372. It was observed: The Bombay Court in R vs. Sakharam Mukhandji 1874 11 Bom HCR, 169 appear to consider the provision of Indian Evidence Act for the Contradiction of witnesses, is less extensive than that of English law. 13 Section 153, Exceptions (1) and (2)14 Ram Sarup Charn Singh vs State AIR 1967 Del. 26-27, 1967 Cr.Lj 744.15State vs. Ragunath Baxi (1985) 1 Guj. LR 198816 State of Assam vs. Muhim Barkalki AIR 1987 SC 9817 Kehar Singh vs State (Del. Admin) AIR 1988 SC 188318 Sachindranath Chatterjee vs Nilima 74 CWN 168

Impeaching credit of a witness, either under Sec.145 (written statement) or under the present section (oral statement) can be done by drawing his attention to those statements, whether written or oral.19

Normally, the testimony of witness given on oath is presumed to be true and lies on the party challenging that testimony to show that the witness is not creditworthy and that his testimony should not be accepted.20

Tape - Recordings are not inadmissible in evidence merely for the reason that they are capable of being tampered with. 21

The evidence of photographs, ordinarily cannot be used to contradict the eye witness account, the evidence of panch as well as an investigating officer.22

Scope

Section 155 cannot be construed as an exception to Sec. 52. The two sections deal with different matters, Sec.52 prohibits character evidence in regard to the subject matter of the suit, whereas this section prescribes the manner of impeaching the credit of a witness.23 Section 146 and 155 are not in conflict with each other, ss 138, 140, 145 and 154 provide for impeaching the credit of a witness by cross-examination. In particular, Sec.146 permits questions injuring the character of a witness to be put to him in cross-examination. This section lays down a different method of discrediting a witness by allowing independent evidence to be adduced.24 The rules with regard to impeachment of witnesses apply to both criminal and civil cases, and by the terms of this section, the same impeaching evidence may be given in the case both of the adversary’s and the party’s own witness. This section lays down four different ways in which the credit of a witness may be impeached, which may not be done by the party, who calls him, except with the leave of the court.25As to the cases in which a party may discredit his own witness, see the notes to the preceding section. It is to be here absorbed that though this section renders former statement relevant only to contradict or negative the statements made previously, yet section 287, Cr.PC (omitted from the new code) goes further in making previous statement before the committing Magistrate “evidence in the case”, that is, substantive evidence of the facts therein disposed to.26

A former statement of a person does not cease to be his statement merely because it was recorded by the order of the court which has no jurisdiction. Even if the Court has not passed the order for recording the statement and the statement is recorded, such a statement can be used for the purposes of Sec.155, Evidence Act.27

19 Doman Mahton vs Surajdeo Prasad AIR 197020 Shersingh vs State of Rajasthan(1987) 2 Raj LR 16421 Partap Singh vs State of Punjab AIR 1964 SC 7222 State of Gujarat vs. Bharat 1991 Cr.Lj 978 (Guj.)23 G Hussenaiab v B Yerraiah AIR 1954 AP 39, (1954) 2 MLJ (AP) 3924 Section 145 does not control sec 155 ; Ram Rathan v State AIR 1956 Raj 19625Profulla Kumar Sarkar was his Emporar ILR 58 1464, 53 CLJ 42726MarutiShindevs Emperor AIR 1922 Bom 10827 State of Punjab vsVishwajit Singh AIR 1987

A letter written by a witness is no evidence of the facts mentioned therein, specially when it is not put to him and he is not given opportunity to contradict or explain the same.28

Sec.138, 155 Evidence Act, require that examination and cross-examination must relate to relevant facts.29

A statement contained in the tape-record is evidence and is admissible not only as a primary evidence but also to corroborate the witness or to contradict his previous statement, to test his veracity or to impeach his credibility.30

Clause (1)

Independent evidence may be given to an adversary’s (or with the leave of the Court a party’s own) witness bears such a general reputation for untruthfulness, or perhaps for moral turpitude generally,31 that he is unworthy of credit. In India, it has been held that this section does not allow evidence of a witness’s general bad character to be brought in.32 According to the theory of English law, such evidence should relate to general reputation only and not express the mere opinion of the impeaching witness. It is not sufficient that the impeaching witness should profess merely to state what he has heard “ others” say; for those maybe but few. He must be able to state what is generally said of the person by those among whom he dwells, or by those who he is chiefly conversant; for it is this only which constitutes his general reputation. Though, as absorbed, the English theory requires that the witness should not express his own opinion, yet, in practice, the regular mode of examining is to ask the witness whether he knows the general reputation among the person’s neighbors and what the reputation is, and then whether from such knowledge he would believe the person whose veracity is impeached, upon his oath.33 The explanation to this section is in accordance with the English law upon the point. The impeaching witness cannot, indirect examination, give the particular instances of the other’s falsehood, or dishonesty, but upon cross examination he may be asked as to his means of knowledge of the other witness, his feelings, if any, towards him and the like: and the answers to these question cannot be contradicted.34Where a witness’s veracity has been attacked, his credit maybe re-established by the cross examination of impeaching witness or by independent general evidence that the impeached witness is worthy of credit, and the party whose witness has been attached may recriminate, that is, the impeaching witness may in his turn be attacked either in cross examination or by independent general evidence with a view to show that he is unworthy of credit but no further recrimination than this is probably allowable.35 Where the general reputation of the witness for truth and veracity is proved to be bad, the court may properly 28AbhaAstavansvs Suresh Astavans AIR 198429 Ganesh Jadhavvs State of Assam (1995) 1 Gau LR 11130 J Thirupathaiahvs K. SubbaRao (1983) 1 APLJ (HC)31 Taylor, Evidence, p.1471 view is that the inquiry need not be resisted to reputation for veracity, but may involve witness’s entire moral character, the opposite party being at liberty to enquire whether in spite of bad character, the impeached witness has not preserved his reputation for truth.32Maung San Myinvs Emperor Air 193033 Taylor, Evidence, p 147034 Sir JF Stephen, Digest of Evidence vol.1, third edn.

disregard his evidence, except in so far as he is corroborated by other credible testimony.36 The question, whether a witness is entitled to credit or not, Must be decided by a court on the evidence before it, and not on what another court thought of the witness in another case.37 The fact that a witness was not believed in a judgment in another case cannot be used against him in a subsequent case. A former judgment in another case cannot be given in evidence for the purpose of impeaching the credit of a witness.38

An inference against credibility of a witness cannot be legitimately drawn without anybody going into the witness box in the manner contemplated by cl (1).39

Where a witness have been alleged to be hostile but was not cross-examined, he cannot be condemned.40

Clause (2)

Clause (2) runs ‘has accepted the offer of a bribe’ but was originally framed ‘has had the offer of a bribe’. The substitution was probably grounded upon the ruling is the case of Attorney-General vs Hitchcock,41 where it was held that the fact that the witness has accepted a bribe to testify may, if denied, be proved, though a mere admission by the witness that he has been offered a bribe cannot prove the same, Pollock CB remarking that it was no disparagement to a man that a bribe is affered to him, though it may be a disparagement to the person who makes the offer.42

Clause (3)

The witness may be impeached by former statements inconsistent with any part of his evidence which is liable to be contradicted. See Illusts (a) and (b)43 in the under mentioned case,44 Wilson J Said:

I am inclined to think that in the third clause of s 155 of the evidence Act, the words ‘which is a liable to be contradicted’ mean ‘which is relevant to the issue.

The last cited proposition, according to the Supreme Court, is stated so broadly.45Any statements verbal as well as written, may be used for this purpose; but, where the statement is in writing, the provisions of s 145, should be followed. In fact, though it

35 Taylor, Evidence p.147336 Butt, Jones, Evidence, p.86637Chandreshwar Prasad vsBisheshwarPratap AIR 192738KarunakaranvsSrinivasan (1958)39DinkarBandhuvs State 72 Bom LR 40540RatanLalvs State of M.P. 199341 Ex R 9142 See however, criticism in Cunningham, Evidence pp.372-7343ArnupvsKedarNath AIR 192544KhadijahvsAddool (1899) 17 Cal 344,34645 N Sri Rama Reddy vs V.V. Giri AIR 1971

is not so expressly laid down and required by the act, in the case of verbal statements,46 the witness should always, if possible, be specifically asked whether he made such and such a statement before he is contradicted through another witness. A document though not in the parts, is admissible to prove the possession and title to the property, if it is used as corroboration for the oral evidence of the executant of the document.47 A recital in the deed which becomes admissible under Sec.157 to corroborate the testimony can also be used under this section to contradict such testimony.56 The handwriting of a witness is not his ‘former statements’ within the meaning of cl.(3) of the section and evidence of writing cannot be let in under this section as other independent evidence for the purpose of impeaching his credit.48

It is always relevant to put to a witness any question which, if answered in a affirmative would qualify contradict some previous part of his testimony given in the trial of the issue; and if such question be put and be answered in the negative, the opposite party may then contradict the witness, and for the simple reason that the contradiction would qualify to contradict the previous part of the witness testimony and so neutralize the effect.49 On the principle just pointed out, if a case be such as to render the evidence of opinion admissible and material, the witness, on cross examination, be asked whether he has not on some particular occasion express a different opinion upon the same subject, and if he denies the fact, it may be proved by other evidence. By the previous opinion as to the merits of the case of a witness who has simply testified to fact cannot be regarding as relevant to the issue an cannot therefore cannot be given in evidence.50 Evidence of previous statements made by a previous witness whose good faith has not been questioned by the crown, cannot be given without previous cross examination of the witness as too such statements. Such procedure is both undesirable and not permitted by Sec. 154 and 155.51

When it is intended to throw discredit upon the evidence of any witness nothing is more common in practice (especially in criminal cases) then for the counsel for the defense to prove, if it can be proved, get the witness as previously made statements inconsistent with the evidence at the trial. When this fact is satisfactorily established, the court cannot but regard the evidence of such witness with suspicion, and the fact is established by the evidence of anyone to whom such statements were made, or in where presence or hearing they where made.52 As to statements reduced to writing by the police officer under Sec 162, Cr.PC, an as to first information see the undernoted case.53 If there is a report which is found to have been made quite independently of and in no relation to any pending investigation, was not decide to promote a pending investigation, was not designed to promote a pending investigation, and had no reference at all to the investigation which had in fact

46 Taylor, Evidence, p. 1445; Wharton, Evidence, p. 55547MohinchandravsKanailal AIR 1930 Call 31148Kirnchandra Pal vsBhondu 1970 MPWR 899,90249 Taylor, Evidence, p. 1445;50 Ibid51Maftavs State of Haryana AIR 200252 R vsUttamchand (1874) 11 Bom HCR 120-2153Azimuddyvs R AIR 1927 Cal 17,ILR

already begun, is a document admissible for the purpose of corroborating the evidence of its maker.54The former statement need not be signed.55

The very purpose of re-examination is to explain matters which have been brought down in cross-examination. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner if the party who called the witness feels that explanation is required for any matter referred to in cross-examination, he has the liberty to put any question in the examination to get the explanation. The public prosecutor should formulate his questions for the purpose. Explanation may be required either ambiguity remains regarding any answer litigated during cross examination or even otherwise. If the public prosecutor feels that certain answers require more elucidation from the witness. He has the freedom and the control of the court in accordance with the other provisions. But the court cannot him to confine his ambiguities alone which rose in cross-examination. Even if the public prosecutor feels that new matter should be elicited from the witness, he can do so, in which case the only requirement is that he must secure permission from the court. If the court thinks that such new matter is necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions a public prosecutor who is attentive during cross-examination, cannot be sensitive to discern which answer in cross-examination requires explanation an a efficient public prosecutor would gather up such answers falling from the mouth of a witness during cross-examination and formulate necessary questions to be put in the re-examination. There is no warrant that re-examinations should be limited to one or two questions. if the exigency requires, any number of questions can be asked in the re-examination.

When an eye witness is examined at length, it is quite possible for him to make discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps, an un-true witness, who is well tutored can successfully make his testimony totally non discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of the witness as so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unreliable approach for judicial scrutiny.

It is a common practice in trial courts to make our contradiction from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence, it is not sufficient to impair the credit of the witness. No doubts Sec 155, evidence act, provides scope for impeaching a credit of a witness by proof of inconsistent former statement. But a reading of a Sec would indicate that all inconsistent statement are not sufficient to impeach the credit of the witness. A former statement, though seemingly inconsistent with the evidence,

54Tika Ram vs State AIR 195755 Narayanan vsKrishanan 1981 Ker LT (SN) 26

need not necessarily be sufficient to amount to contradiction would effect the credit of the witness. Sec. 145, Evidence Act, also enabled the cross examiner to use any former statement of the witness, but it cautions that if it is intended to ‘contradict’ the witness the cross examiner is enjoined to comply with the formality prescribed that in. Sec. 162 of court also permits that cross-examination use the previous statement of witness (recorded under Sec 162 of the code) for the only limited purpose; that is to “Contradict” the witness. To contradict a witness, therefore must be to discredit the particular version of the witness. Unless former statement even if the latter is at variants with the former to some extent, it would not be helpful to contradict that witness.

In the instant case, the evidence of the conductor and the driver of the bus evinces credibility. They are the most natural witness for the murder which took place inside the bus. The minor variation which the defense counsel discovered from their former statements did not amount to discredit the core of their evidence. The strained reasoning of this trial court for sight stepping their evidence is to fragile for jury countenance. Therefore, their testimony cannot be rejected.56

There is no rule of evidence which prevents a defendant an endeavoring to shake the credit of a witness by proof of former inconsistence statements, from deposing that while he was engaged with conversation with the witness, a tape recorder was in operation, or from producing the said tape recorder in support of the assertion that a certain statement was made in his presence.57 A tape recorded statements is also admissible under Sec 155 to contradict the evidence given by the witness in court, to test the veracity of the witness and to show that he is not an impartial witness.58 As to the use of previous statement under Sec 228,Cr Pc (omitted from the new code),59where a witness made a statement before the cotoner, it was held admissible for the purpose of impugning his credit, the accused should have had an opportunity to cross-examine him. Previous statement put in to contradict a witness can be used only for the purpose of contradicting him and not as substantial evidence of the identification of a person. If an arresting witness is dead, his depositions in a prior judicial proceeding would be relevant and admissible, if the prior judicial proceeding was between the same party and adverse party in that proceeding had the right and opportunity to cross-examine him an the question in issue is substantially the same. But, if the witness, being alive, is examined in the present proceeding, his prior deposition are not available as substantive evidence but can only be used to contradict or corroborate his present statement.60

The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in court. This principle is delineated in Sec 155(3), IEA 1872, and it must be borne in mind when reading Sec 145 which consists of two limbs. It is provided in the first limb of Sec 145 that a witness may be cross-

56Sajjan Kumar s State of M.P. 1999 SC Cr. LJ 456157 Rup Chand vsMahabir Prasad AIR 1956 Punj 17358

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examined as to previous statement made by him without such writing being shown to him. But the second limb provides that ‘if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are used for the purpose for contradicting him.’ There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in elicting materials to his benefit through such cross-examination even without restorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb Sec 145.61

(d) Clause 4

The Act, as originally drafted, contained the following, additional section relating to 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 common prostitute, or that her conduct was generally unchaste is relevant.

It was, however, thought unnecessary to retain this as a separate section, 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.

Thus on indictment 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 be believed upon he oath, but so also is proof that she is reputed prostitute, for it goes far towards raising inference that she yielded willingly. In such cases, general evidence of this kind will, on this ground, be received though, the women not called as a witness, and though, if called, she be not asked, n cross examination, any questions in cross examination tending to impeach her character for chastity. Counsel for defense cannot, however, prove specific immoral acts with the prisoner, unless he has first given the prosecutrix, an opportunity of denying or explaining them. Moreover, the prosecutrix, if cross-examined as to particular acts of immorality with other men, may decline to answer such questions, while if she answers them in the negative, witnesses cannot be called to contradict her.62

If the fact in issue was concerning the paternity of the child perhaps some relevance to the moral life of his mother could have been assumed but in the murder case where the mother of the child gave evidence that her son was murdered, there is little scope for conduction an injury into the moral life of the mother. Law does not

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merit even the child of a prostitute to be murdered. The murderer in such a case cannot escape by establishing that the mother of a child was of loose morals. The evidence of the defense was therefore quite unnecessary and irrelevant. The HC erred in relying on such testimony and reversing a testimony well-merited conviction.63

Re-Establishment Credit: Recrimination:

The act does not in terms provided for either of these, but, as already observed,64according to English practice, when a witness’s character for truth at veracity has been directly impeached, and the character of the impeaching witness for truth and veracity may itself be attacked.

A direct impeachment of a moral character by testimony (reputation of personal opinion) to a general trait of character plainly satisfies the rule and opens the way for opposite party to rehabilitate his witness by testimony. No one has ever doubted this.65

When a collateral attack admits sustaining testimony, that is, whether such a course is open where the witness is attacked upon the other ground. Mentioned in this sec. 153 and 146, is a matter upon which there has been conflict in the reported cases here referred to.66 It has been held in America that a witness’s character so far impeached by putting in evidence his conviction of felony, it is not admissible of his good reputation for truth. it is a matter of doubt, whether such testimony can be received merely upon proof of prior conflicting statements of the witness or upon the eliciting of answers disparaging to the witness cross-examination. On the other hand, it has been said that where a opposing case is that the witness testified under corrupt motives, this being involved in the attack on his credibility, it is but proper that such evidence should be rebutted.67 But, inIndia, it has been held with specific reference to the section as well as sec.146 and 148, that the credit of the witness can be said to have been shaken only, if it can be shown that he is not a man of veracity and not that he is otherwise and undesirable person, such as a black marketer. The arguments for admission of rebutting testimony to good character in all cases is, that since the object of the attack is to impeach the witness, the mood of such attack is immaterial, and that the same reason exists for sustaining the witness, as where witnesses are called to testify directly to his bad reputation; on the other hand it is said that the admissibility of the evidence in all cases may lead to confusion and the multiplicity of collateral issues. It is, of course, clear that in any case, and as a general

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rule, a party cannot fortify the credit of his witness by providing good character for truth until the credibility of the witness has been assailed.

Difference between English and Indian Law

The question of classification is, however, of no great practical importance, as the provision of this section are in substantial accordance with those of English law on the point, though it is useful to bear it in mind, in order to avoid the confusion which is not unlikely to result from the novel view of the matter presented by this Act. The two main points upon which this section differs from English law are that, under the first clause, a party may discredit his own witness by proof of such a reputation as renders him unworthy of belief, which may not be done in England and that apparently it is not necessary under the third clause to lay a foundation by the interrogation of witness for the subsequent evidence in proof of the previous inconsistent statements.68 Under the English law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Sec.155 of the Act.69 In England, further, a party may give proof of such statement, by his own witness only where the witness is in the opinion of the judge, ‘adverse’. And though doubtless, the English practice will be in large number of cases followed in this respect, yet it should be remembered that the Act has left the discretion of the court wholly unfettered, either to allow or disallow such impeachment as justice and particular circumstance of each case may require. The importance of the section lies in this that is, by implication, restricts the evidence which may be given (otherwise than in the exceptional cases mentioned in sec.153) to impeach a witness’s credit – to that specified in the section.70 Under the English Law, a party calling the witness can cross examine and contradict a witness in respect of his previous inconsistent statement with the leave of the court only when the court considers the witness to be “adverse”. No such condition has been laid down in Sec.154 or 155 of the Indian Evidence Act, 1872, and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by dependent upon the “hostile”, or “adverseness” of the witness. In this respect, the Indian Evidence Act is in advance of the English law.71

It is not the law that each and every witness who has seen the occurrence must be examined by the prosecution. Where the witness who is the first person to narrate

68 Section 14569 A.P. Raovs State 1990 SC Cr R 139 (A.P)70 W. Markby, Elements of Law, Vol.9, Little, Brown & Co., Boston 1940, pg.10971 A.P. Rao vs State 1990 SC Cr. R 139, 142 (A.P.)

about the occurrence has been won over by the accused, and the prosecution moves application before the court narrating this fact, the non-examination of such an eye witness is not fatal to the prosecution.72

A formal witness who simply proves his signature on the seizure list and the material exhibits cannot be declared hostile.73

Credibility of Witnesses – Positive Rulings by the Court

Credibility of Deaf and dumb witness

In State of Rajasthan vs Darshan Singh ( Cr. Appeal No. 870 of 2007), issue pertaining to admissibility and credibility of a deaf and dumb witness arose for consideration. The Bench held that “a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.” The Bench further held that “a deaf and dumb person is a competent witness”.

Credibility of a Child Witness

As a matter of prudence courts often show cautiousness while putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from the facts and circumstances in the case, the Privy Council decision in R v. Norbury, where the evidence of the child witness of 6 years, who herself was the victim of rape, was admitted. Here the court observed that a child may not understand the nature of an oath but if he is otherwise competent to testify and understand the nature of the questions put before him and is able to give rational answers thereto, then the statement of such a child witness would be held to be admitted and no corroborative proof is necessary. The Supreme Court in Tahal Singh v. Punjab, observed:

“In our country, particularly in rural areas it is difficult to think of a lad of 13 year as a child. A vast majority of boys around that age go in fields to work. They are certainly capable of understanding the significance of the oath and necessity to speak the truth.”

In this regard a very important observation has been made in Jarina Khatun v. State of Assam, that the Trial Court is the best judge in the matter of deciding the competency of such a witness as there, the child himself appears before the court. Therefore it has an opportunity to see him, notice his demeanours, record his evidence and thereafter on scrutiny accepted his testimony.

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72RamasisMahato vs State of Bihar 1986 PLJR 623 (Pat) (DB)73S.K.N. Sinha vs State of Bihar 1994 1 Pat. LJR 264

Credibility of an Expert Witness

An ‘expert’ is not a ‘witness’ of fact. His evidence is really of an advisory character. The duty of an ‘expert witness’ is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data furnished which form the basis of his conclusions State of H.P. vs Jai Lal AIR 1999 SCC 3318C

Credibility of Eye Witness

In Kartik Malhar v. State of Bihar, (1996) 1 SCC 614conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.

Suggestions :

If you are a Lawyer:

Avoid those who are unreliable or dishonest - judges do not warm to such characters.

Try to avoid those who have a tendency to crack under pressure.  In the witness box they can come across as contradictory and unsure, which will create doubt in the judge’s mind.

If you are acting as a witness:

Check and then check again your witness statement.

If you are giving evidence, make sure you are happy that the contents of your witness statement are all true and correct.

If lawyers have drafted it for you, make sure you understand and are comfortable with the wording that has been used.

When giving a statement or oral evidence in court, state the facts as they are or as you recall: do not just say what you think your party wants you to say.  If you cannot remember something, say so.

Do not lie:

Whether intentionally or not, avoid trying to mould your evidence to your party’s case.  You may damage your credibility as a witness and, worse, damage your party’s case.